In Re: The Complaint and Petition of the United States of America in a Cause for Exoneration from or Limitation of Liability with Respect to DHS-CBP Vessel M382901 (M901) Re the Collision with an Unnamed Pan
ORDER Granting Government's 41 Motion for Partial Summary Judgment and limits the scope of recoverable damages to those recoverable under DOHSA. Signed by Judge Jeffrey T. Miller on 4/13/2017. (rlu)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
In re Complaint and Petition of the
United States of America in a Cause
for Exoneration from or Limitation of
Liability with Respect to DHS-CBP
Vessel M382901 (M901) Re: the
Collision with an Unnamed Panga
Smuggling Vessel on or about June
CASE NO. 15cv2626 JM(NLS)
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT
The United States of America (“Government”) moves for partial summary
18 judgment on the scope of damages available for the claims asserted by “The Estate of
19 Graciela Lopez Franco, by and through Guadalupe Valencia, personal representative,
20 and Martin Franco Jiminez and Trinidad Lopez Hernandez.” (The “Franco Claimants”).
21 The Franco Claimants oppose the motion on the ground that the Government fails to
22 submit sufficient admissible evidence to show that the incident occurred outside the
23 three nautical mile jurisdictional limit of the Death on the High Seas Act (“DOHSA”),
24 46 U.S.C. §30301, et seq. Pursuant to Local Rule 7.1(d)(1), the court finds the matters
25 presented appropriate for resolution without oral argument. For the reasons set forth
26 below, the court grants the motion for partial summary judgment
On November 23, 2015, the Government commenced this admiralty action for
1 exoneration from or limitation of liability. The United States is the owner of a 38 foot
2 SAFE boat built by SAFE Boats International, LLC and identified as public vessel
3 “M901.” At the time of the incident at issue, the M901 was operated by the U. S.
4 Customs and Border Protection (“CBP”).
On June 17, 2015, a “Panga” type vessel with multiple persons on board was
6 observed by aircraft off the coast of Baja California, Republic of Mexico. On June 18,
7 2015, the Panga entered United States territorial waters and, in the early morning hours,
8 the M901 approached the vessel. (Compl. ¶¶7-9). The Panga, 30 feet in length,
9 transported 20 foreign nationals without legal status to enter the United States. The
10 vessel allegedly entered the United States with the express purpose and intent of
11 entering the United States illegally and by stealth. (Compl. ¶11).
Once the CBP Agents on board the M901 obtained visual contact of the
13 smuggling vessel, the crew activated the blue law enforcement lights, sounded the
14 siren, activated the spotlight, and verbally ordered the Panga to stop, in both Spanish
15 and English. Instead of stopping, the Panga accelerated and allegedly engaged in
16 evasive and dangerous turns. The crew on the M901 fired flares into the air and
17 attempted to disable the Panga’s engines. The Panga did not stop and struck the right
18 side of the M901. The Panga sank and CBP Agents rescued 19 of the 20 occupants of
19 the Panga. One of the passengers, Graciela Lopez Franco, died and several others were
On December 9, 2015, the court granted the Government’s motion for Notice and
22 Publication pursuant to the Supplemental Rules for Certain Admiralty and Maritime
23 Claims. In response to the notice, two individuals (Hector Manuel Lopez Garcia and
24 Luis Fernando Lopez Garcia) filed claims for personal injury as did the Franco
25 Claimants. The motion for partial summary judgment is directed at the Franco
26 Claimants only.
In their amended answer, the Franco Claimants, parents of the decedent, allege
28 that the decedent was unmarried, had no children, and died intestate. The amended
1 answer also acknowledges that the incident at issue is subject to the provisions of the
2 Suits in Admiralty Act (“SAA”), 46 U.S.C. §30901, et seq. and DOHSA. (Ct. Dkt. 30).
3 The Franco Claimants seek to recover “all legally cognizable damages to which the law
4 entitles them.” The present motion seeks to limit recoverable damages to those
5 damages available under DOHSA.
7 Legal Standards
A motion for summary judgment shall be granted where “there is no genuine
9 issue as to any material fact and . . . the moving party is entitled to judgment as a matter
10 of law.” Fed. R. Civ. P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th
11 Cir. 2005). The moving party bears the initial burden of informing the court of the
12 basis for its motion and identifying those portions of the file which it believes
13 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
14 477 U.S. 317, 323 (1986). There is “no express or implied requirement in Rule 56 that
15 the moving party support its motion with affidavits or other similar materials negating
16 the opponent’s claim.” Id. (emphasis in original). The opposing party cannot rest on
17 the mere allegations or denials of a pleading, but must “go beyond the pleadings and
18 by [the party’s] own affidavits, or by the ‘depositions, answers to interrogatories, and
19 admissions on file’ designate ‘specific facts showing that there is a genuine issue for
20 trial.’” Id. at 324 (citation omitted). The opposing party also may not rely solely on
21 conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040,
22 1045 (9th Cir. 1989).
The court must examine the evidence in the light most favorable to the non-
24 moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt
25 as to the existence of any issue of material fact requires denial of the motion. Anderson
26 v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment,
27 when “‘the moving party bears the burden of proof at trial, it must come forward with
28 evidence which would entitle it to a directed verdict if the evidence were
1 uncontroverted at trial.’” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)
2 (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d
3 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)).
4 The Motion
The Government seeks to limit the Franco Claimants’ damages to those damages
6 specifically authorized under DOHSA. First, DOHSA permits a cause of action to be
7 maintained by the personal representative of the decedent for “the exclusive benefit of
8 the decedent’s spouse, parent, child, or dependent relative.” 46 U.S.C. § 30302. In
9 other words, DOHSA does not provide for a survival action or a claim seeking damages
10 on behalf of a decedent. See Jacobs v., Northern King Shipping Co., Ltd., 180 F.3d
11 713, 717 (5th Cir. 1999) (DOHSA “provides no survival action”). Second, DOHSA
12 expressly limits recoverable damages to the “pecuniary loss sustained by the
13 individuals for whose benefit the action is brought.” 46 U.S.C. § 30303; Dooley v.
14 Korean Airlines, 524 U.S. 116, 118 (1998).
The Franco Claimants do not dispute these two well-settled damages principles
16 of DOHSA. Rather, they claim that the Government has failed to establish that
17 DOHSA applies to the Franco Claimants because the Government fails to establish that
18 the incident at issue occurred “beyond 3 nautical miles from the shore of the United
19 States.” 46 U.S.C. §30302. Under these circumstances, the Franco Claimants contend
20 that state law applies to permit both a survival action and an award of non-economic
21 damages. This contention is not persuasive.
The court concludes that there is no genuine issue of material fact that the
23 incident occurred beyond the three-mile nautical limit required for the application of
24 DOHSA. The declaration and deposition testimony of Christopher Hunter, the Vessel
25 Commander of the M901, establish that the incident occurred about 8.9 nautical miles
26 from the shore of the United States. (Hunter Decl. ¶¶5-10; Hunter Depo. at 108:17 27 110:20). Hunter declares that within moments of the incident he radioed the precise
28 GPS coordinates: North 33.00 (latitude) by West 117.28 (longitude). (Hunter Decl.
1 ¶7). These coordinates correspond to a point in the Pacific Ocean about 8.9 nautical
2 miles off the coast of Encinitas, California. (Id. ¶9).
In sum, the court grants the Government’s motion for partial summary judgment
4 and limits the scope of recoverable damages to those recoverable under DOHSA.
IT IS SO ORDERED.
6 DATED: April 13, 2017
Hon. Jeffrey T. Miller
United States District Judge
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