New case from the Fifth Circuit Court of Appeals. The case is Osprey Ship Mgmt. v. Foster, 2010 U.S. App. LEXIS 135410, can the original opinion can be found here. Facts: Ship being navigated by a Pilot allides with a submerged structure, outside of the navigable channel which was marked by a privately maintained buoy. At trial, the owner argued that the United States is liable for the allision because of a nautical chart error. The owner also sought liability against the pilot association. The Pilot and Captain are found equally negligent for the allision. Appeal: On appeal, the Fifth Circuit resoundingly rejects the claim against the United States, criticizing the vessel's owner's "disingenuous, if not misleading" citation to a government manual. Typically, governmental discretionary acts which result in damages cannot be sued upon. The "discretionary function" immunizes such government action from litigation. Second, the vessel owner challenged, then conceded, the liability of the pilot's association. On the Pilot's appeal from the adverse decision, Pilot argued that the trial court made several erroneous findings of fact. The appeals court began by stating that Pilots are held to an "unusually high standard of care." Citing this high standard of care, the appeals court affirmed the trial court's finding that the Pilot did not exercise the standard of care in navigating the vessel: Even if it were true that it was common knowledge that staying west of Red Buoy 2 would keep a vessel west of LW1, the district court was not clearly erroneous in finding that Pilot Foster nevertheless understood that floating navigational aids should not be relied upon to the exclusion of other navigational aids because they can float or move at any time, and in finding that given his knowledge of the river and of the location of LW1 (which his father, a local pilot, had hit with a vessel previously) it was negligent to bring the vessel out of the improved channel and so close to Red Buoy 2. Citing to his dad's collision with the same buoy at issue in this case? Ouch. The final point on appeal was that the Pilot and Captain should not be liable because the submerged structure (that was hit) was longer than its permit allowed. The trial court and appeals court found that the cause of this allision was not the length of the structure but the navigation of the vessel outside the marked channel.
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