Burnashov v. F/V Ocean View, Inc.

Filing 61

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE: THIRD PARTY DEFENDANTS MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 50)is ALLOWED.(Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KONSTANTIN BURNASHOV,
Plaintiff,

v.

CIVIL ACTION NO.
11-11266-MBB

F/V OCEANVIEW, INC.
and
TMT CLAM DREDGERS, LLC,
Defendants and
Third Party Plaintiffs,
v.

UNITED STATES OF AMERICA,
Third Party Defendant.
MEMORANDUM AND ORDER RE:
THIRD PARTY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 50)
October 15, 2013
BOWLER, U.S.M.J.
Plaintiff Konstantin Burnashov (“plaintiff”) brought this
suit against defendant F/V Oceanview, Inc. (“Oceanview”) on July
19, 2011.

Thereafter, Oceanview filed a third party complaint

against the United States (“United States” or “the government”)
pursuant to Rule 14, Fed.R.Civ.P. (“Rule 14”), asserting
liability against the United States under the Federal Tort

Claims Act, 28 U.S.C. § 1346 (“FTCA”).

(Docket Entry # 8).

The

third party complaint sets out the following three claims
against the United States:

(1) contribution based on the

government’s negligence; (2) indemnity based on the government’s
negligence; and (3) negligence.

On April 4, 2013, the United

States filed a motion for summary judgment against Oceanview.
(Docket Entry # 50).

Oceanview opposes summary judgment.

(Docket Entry # 54).

On July 17, 2013, this court held a

hearing and took the summary judgment motion (Docket Entry # 50)
under advisement.
STANDARD OF REVIEW
Summary judgment is designed “‘to pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”

Davila v. Corporacion De

Puerto Rico Para La Difusion Publica, 498 F.3d 9, 12 (1st Cir.
2007).

It is appropriate when the summary judgment record shows

“there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law.”
Fed.R.Civ.P.

Rule 56(c),

“A dispute is genuine if the evidence about the

fact is such that a reasonable jury could resolve the point in
the favor of the non-moving party.”

American Steel Erectors,

Inc. v. Local Union No. 7, International Association of Bridge,
Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68,
75 (1st Cir. 2008).

“A fact is material if it carries with it

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the potential to affect the outcome of the suit under the
applicable law.”

Id.

Facts are viewed in favor of the non-movant, i.e.,
Oceanview.
2009).

Noonan v. Staples, Inc., 556 F.3d 20, 23 (1st Cir.

“Where, as here, the nonmovant has the burden of proof

and the evidence on one or more of the critical issues in the
case is not significantly probative, summary judgment may be
granted.”

Davila, 498 F.3d at 12 (internal quotation marks,

citation and ellipses omitted); accord Clifford v. Barnhart, 449
F.3d 276, 280 (1st Cir. 2006) (if moving party makes preliminary
showing, nonmoving party must “produce specific facts, in
suitable evidentiary form, to establish the presence of a
trialworthy issue” with respect to each element on which he
“would bear the burden of proof at trial”) (internal quotation
marks and citations omitted).
Oceanview submits a LR. 56.1 statement of undisputed facts.
Uncontroverted statements of fact in the LR. 56.1 statement
comprise part of the summary judgment record.

See Cochran v.

Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (the
plaintiff’s failure to contest date in LR. 56.1 statement of
material facts caused date to be admitted on summary judgment);
Stonkus v. City of Brockton School Department, 322 F.3d 97, 102
(1st Cir. 2003) (citing LR. 56.1 and deeming admitted undisputed
material facts that the plaintiff failed to controvert).

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FACTUAL BACKGROUND
Burnashov worked as a deckhand and crewmember on the F/V
ESS Pursuit (“the ESS Pursuit”), a clam dredging boat owned by
Oceanview.

On June 6, 2010, the ESS Pursuit recovered several

canisters while in the course of business that contained sulfur
mustard, a blister agent used during World War I.
# 50-1).

(Docket Entry

Burnashov was working on “the sprayer/shaker” on the

ESS Pursuit 46 miles south of Long Island, New York, when
chemical munitions were discovered during the course of fishing.
(Docket Entry # 50-4).

The ESS Pursuit was in an unrestricted

clamming area during the incident where there were no
prohibitions on fishing vessels because of known safety
concerns.

(Docket Entry ## 56-1 & 54-7).

Several methods are used to dredge for clams.

In this

instance, portions of the ocean floor are scraped into cages
then sorted on a boat.

(Docket Entry # 59-3).

While clams are

found and set aside, other miscellaneous items from the ocean
are also picked up in the process.

(Docket Entry # 54-8).

This

can include benign items such as garbage but also disposed war
munitions.

On June 6, 2010, plaintiff discovered eight to ten

mustard gas canisters.

Plaintiff was exposed to the munitions

for approximately 30 minutes while disposing of the canisters by
throwing them overboard.

(Docket Entry # 54-2).

When plaintiff

reported the munitions onboard the vessel while sorting clams,

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Captain Kieran Kelly told plaintiff to throw the canisters
overboard.

(Docket Entry # 54-2).

Plaintiff also reported

liquid leaking out of the ordnance that contacted plaintiff, who
was wearing boots, a rubber bib, a rubber coat, gloves and clear
glasses.

(Docket Entry # 54-2).

Mustard gas chemically burns skin that it contacts.
(Docket Entry # 54-5).
weapon.

It was widely used in World War I as a

(Docket Entry # 54-5).

After the war, disposal of

large quantities of war munitions became a concern.
Entry # 54-5).

(Docket

Among the disposal methods, sea disposal became

a popular way of disposing of mustard gas canisters.
Entry # 50-7, p. 16).

(Docket

The effects of mustard gas contact can be

mild or severe in nature.

(Docket Entry # 54-18).

The effects

of mustard gas poisoning are delayed and do not appear until
several hours after initial contact.

(Docket Entry # 54-18).

Plaintiff reported blisters on his hands after contact with the
ordnance.

(Docket Entry # 59-3, p. 11).

Once the incident was

reported to the Coast Guard, the ESS Pursuit returned to port in
New Bedford, Massachusetts.

(Docket Entry # 54-15).

Subsequently, plaintiff was taken to the hospital where he was
treated for burns and blisters.

(Docket Entry # 54-15).

boat was quarantined and decontaminated and the catch was
destroyed.

(Docket Entry # 50-2).
DISCUSSION

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The

The United States seeks summary judgment on the basis of
the discretionary function exception.

See 28 U.S.C. § 2860(a).

The Federal Torts Claims Act, 28 U.S.C. § 1346 (“FTCA”),
provides a limited number of exceptions to sovereign immunity
that allow a party to successfully bring a tort claim against
the government.

“The FTCA represents a general waiver of

federal sovereign immunity for tortious acts and omissions of
federal employees.

But that general waiver is subject to a

litany of exceptions.”
(1st Cir. 2009).

Limone v. United States, 579 F.3d 79, 88

In addition, “As with all waivers of sovereign

immunity, the FTCA must be ‘construed strictly in favor of the
federal government, and must not be enlarged beyond such
boundaries as its language plainly requires.’”

Bolduc v. United

States, 402 F.3d 50, 56 (1st Cir. 2005) (quoting United States v.
Horn, 29 F.3d 754, 762 (1st Cir. 1994)).
One of the exceptions to the FTCA is the discretionary
function provision.

28 U.S.C. § 2860(a).

A twofold test

determines whether the discretionary function exception applies.
Berkovitz v. United States, 486 U.S. 531, 536 (1988).

First,

the court must ascertain “if the conduct involves an element of
judgment or choice” for the government.

Id.

If the first prong

is met, then the court must analyze “whether that judgment or
choice was susceptible to policy-related analysis.”

Id.

discretionary function exception therefore “applies if the

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The

conduct underlying an FTCA claim both (1) involves an element of
judgment or choice, and (2) was susceptible to policy-related
analysis.”

Sanchez ex rel. D.R.-S. v. United States, 671 F.3d

86, 93 (1st Cir. 2012) (quoting Limone v. United States, 579 F.3d
at 101) (quoting Berkovitz, 486 U.S. at 536) (citations and
internal quotation marks omitted).
A.

Discretionary Activity
In seeking summary judgment, the United States argues that

the discretionary function exception to the FTCA bars the
negligence claims against the government in the third party
complaint.

In particular, the United States maintains that

Oceanview’s argument for liability implicates the Government’s
protected decisions regarding the disposal and tracking of
munitions and distribution of literature.

These discretionary

decisions fall under the discretionary function exception to the
FTCA, according to the United States.
Liability under the FTCA is subject to exceptions laid out
in 28 U.S.C. § 2860, which include the discretionary function
exception.

The exception bars liability against the United

States for:
Any claim based upon an act or omission of an employee of
the Government, exercising due care, in the execution of a
statute or regulation, whether or not such statute or
regulation be valid, or based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal

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agency or an employee of the Government, whether or not the
discretion involved be abused.
28 U.S.C. § 2680(a).

There is no liability for an absence “of

due care in promulgating a policy, or in having no policy or
program at all on an issue, however imprudent it might seem” as
it is covered within “the discretionary function exception.”
Shuman v. United States, 765 F.2d 283, 290 (1st Cir. 1985)
(internal citations omitted).

It is not enough for plaintiff to

identify a statute relating to the claim.

Kelly v. United

States, 924 F.2d 355, 360 (1st Cir. 1991) (holding that the
discretionary function exception applies when statutory language
“interweave[es] imperatives with weaker, precatory verbs and
generalities more characteristic of discretion than of mandatory
directives”).
were violated.

Instead, there must be specific directions that
See Daigle v. Shell Oil Co., 972 F.2d 1527, 1540

(10th Cir. 1992) (“question is not whether the Army fell short in
its efforts . . . but whether the Army’s shortcomings involved
violations of specific, mandatory directives”).
Oceanview maintains the United States violated mandatory
directives under the John Warner National Defense Authorization
Act for Fiscal Year 2007, Pub.L. No. 109-364, § 547, 120
Stat.2083 (2006) (“John Warner Defense Act”) and the Department
of Defense Manual (“DOD Manual”).

Specifically, Oceanview

claims that the United States violated the John Warner Defense

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Act by failing inform fishing operations of the possibility of
contact with military munitions.

(Docket Entry # 54).

Additionally, Oceanview submits that the United States failed to
update nautical charts and other materials, which would have
identified hazards to fishing operations.

(Docket Entry # 54).

In the case at bar, the United States did not violate
mandatory directives through its protected discretionary
activity.

The documents proffered by Oceanview do not meet the

standard of mandatory directives that would lead to liability on
behalf of the United States.

Courts should look “first to

statutes, regulations and agency guidelines as competent sources
for determining established government policy.”
States, 290 F.3d 29, 36 (1st Cir. 2002).

Wood v. United

The John Warner Defense

Act sets a goal whereas a mandatory directive is “unambiguous”
and “define[s] the proper level of conduct.”
States, 162 F.3d 154, 165 (1st Cir. 1998).

Irving v. United

The language in

section 313 of the statute itself refers to the tracking and
mitigation of disposed munitions as “Performance Goals for
Remediation.”

To be considered a directive instead of a goal

for purposes of the discretionary function exception, there must
be “a specific mandatory directive that the defendant had a
clear duty under federal law to perform and, subsequently,
failed to perform.”

Sanchez v. United States, 707 F.Supp.2d

216, 226 (D.P.R. 2010) (quotation marks and brackets omitted).

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The documents cited by Oceanview, such as the nautical
charts and DOD Manual, are not mandatory directives.

“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.”

Limar Shipping Ltd.

v. United States, 324 F.3d 1, 11 (1st Cir. 2003).

Additionally,

the DOD Manual cited by Oceanview as a mandatory directive does
not apply because disposed munitions, such as mustard gas
canisters, are no longer property of the Government.

(Docket

Entry # 56-4).
B.

Policy Related Judgments
Under the second step, the court must consider whether the

activity is “of the type and kind that Congress sought to
safeguard through the discretionary function exception.”
Fothergill v. United States, 566 F.3d 248, 253 (1st Cir. 2009).
The government does not have to show that a purposeful policy
judgment was actually made.

Id.

“The discretionary function

exception applies to all acts and omissions that are susceptible
to policy analysis, whether or not that analysis has been
performed on a given occasion.”

Id.

Congress enacted the

discretionary function exception intending to “‘prevent judicial
“second-guessing” of legislative and administrative decisions

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grounded in social, economic, and political policy through the
medium of an action in tort.’”

Abreu v. United States, 468 F.3d

20, 25 (1st Cir. 2006) (quoting United States v. S.A. Empresa de
Viacao Aerea Rio Grandense, 467 U.S. 797, 814 (1984)).
The John Warner Defense Act and the DOD Manual are not
mandatory directives because they relate to “policy decisions
rather than mandating a specific course of conduct.”

Francis v.

United States, 2013 WL 1352384, at *3 (D.P.R. Apr. 3, 2013).
The disposal of war munitions is the type of decision that the
discretionary function exception aims to cover.

The decisions

concerning whether and how to warn fishing operations of
potential munitions are policy concerns.

“We also perceive that

there is a particularly strong argument for limiting the rule of
Gaubert1 where the exercise of military authority is involved, in
view of the numerous cases cautioning the courts to avoid
interfering with the exercise of discretionary military
authority.”

Abreu v. United States, 468 F.3d at 27-28.

The decision to mark munitions dumping grounds encompasses
discretionary conduct protected by policy considerations.

See,

e.g., Loughlin v. United States, 286 F.Supp.2d 1, 23 (D.D.C.
2003) (“Army’s decision not to issue warnings at the time that
1

The court in Abreu discussed Gaubert v. United States, 499
U.S. 315, 323-24 (1991), insofar as it established that,
“The discretionary function exception does not shield the
conduct of an employee who violates a mandatory regulation.”
Abreu v. United States, 468 F.3d at 27.
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it buried the munitions at AUES implicates the very kind of
policy judgments that warrant protection under § 268(a)”).
“[D]ecisions about what kind of warning to issue, what to say
about the dangers that could result from the burials, would have
involved an additional element of discretion, because the safety
issues that the military would have had to consider were, at
best, speculative and ill-defined.”

Id. at 24.

Moreover,

because the mustard gas canisters were dumped approximately a
century ago without proper documentation, the current location
of disposed munitions cannot be plotted with accuracy.
Entry # 56-3).

(Docket

This could create a hazard by misinforming

fishing vessels by roughly plotting disposal sites and giving
vessels a false sense of security.

The Government has valid

policy concerns ensuring that any marked disposal sites are
accurate and precise because “actions of Government agents
involving the necessary element of choice and grounded in the
social, economic, or political goals of the statute and
regulations are protected.”
at 323.

United States v. Gaubert, 499 U.S.

Decisions regarding disposal of munitions involve

“competing concerns of secrecy and safety, national security and
public health.”

Loughlin v. United States, 393 F.3d 155, 164

(D.C.Cir. 2004) (internal citation omitted).
In sum, the discretionary function exception applies.

The

conduct at issue can fairly be described as discretionary and it

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was not policy driven.

Accordingly, the government is immune

from suit and the claims in the third party complaint (Docket
Entry # 8) against the United States are subject to dismissal
for lack of subject matter jurisdiction.

See Sanchez ex rel.

D.R.-S. v. United States 671 F.3d at 92-93 (if “discretionary
function exception applies, the FTCA’s jurisdictional grant
under 28 U.S.C. § 1346(b) does not, such that . . . the claim
must be dismissed for lack of subject matter jurisdiction”)
(citations, internal quotation marks and brackets omitted).
Likewise, there is no liability against the United States under
Rule 14(c)(2) with respect to plaintiff’s claims.
CONCLUSION
For the foregoing reasons, the motion for summary judgment
(Docket Entry # 50) is ALLOWED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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