APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: ALDISERT, WEIS and BECKER, Circuit Judges
On April 9, 1974, the Greek tanker ELIAS exploded while discharging its cargo of crude oil at the Fort Mifflin terminal in Philadelphia. The vessel was severed; thirteen people were killed; and property damages were in the millions of dollars. These consolidated appeals are taken in five of the many lawsuits that resulted from that disastrous explosion. All of the appellants seek damages from the United States for an allegedly negligent inspection of the ELIAS by the Coast Guard shortly before the disaster.
These appeals raise two important questions about the duties of the Coast Guard to the crew members of vessels in the navigable waters of the United States and to the owners of property immediately adjacent to those waters. We must decide first whether the appellants have an implied right to sue the government under the Ports and Waterways Safety Act of 1972, 33 U.S.C. §§ 1221-1232 (1976 & Supp. IV 1980) ("PWSA"). We must also determine whether the appellants have stated a claim for relief under the Suits in Admiralty Act, 46 U.S.C.§ 742 (1976), by alleging that the Coast Guard failed to exercise due care when it undertook the inspection of the ELIAS as a "good samaritan."
In an unpublished opinion, the district court dismissed these actions on the grounds that the PWSA did not create duties of the Coast Guard to any of the appellants and that the pleadings did not allege facts that satisfied the requisites for good samaritan liability. For the reasons set out in this opinion, we will affirm.*fn1
Because the district court dismissed these actions under Rule 12(b) (6), we assume that the well-pleaded and material allegations of the pleadings are true and view the facts in the light most favorable to the appellants.*fn2
On April 7, two days before the fatal explosion and while she was still at sea, the ELIAS suffered a fire in one of her tanks. The tanker sent an S.O.S. message to the Coast Guard in Norfolk, Virginia at 10:55 p.m.; she cancelled the S.O.S. thirty minutes later, after the fire was extinguished. The next day, the Coast Guard in Norfolk transmitted this information to both the Captain of the Port*fn3 and the Coast Guard Office of Marine Inspection in Philadelphia. Also on April 8, the ELIAS arrived at the Arco Pipeline Company pier at Fort Mifflin and began discharging her cargo. The tanker's captain and crew did not inform Arco's employees about the previous day's fire, the origins of which had not been discovered.
On the afternoon of April 9, about eight hours before the explosion, Lieutenant Frederick Adamchak of the Office of Marine Inspection boarded the ELIAS specifically to inspect the area of the April 7 fire and to determine whether the tanker could safely continue discharging. After his inspection, Adamchak met on board with two representatives of the Captain of the Port's office. He did not meet the captain of the ELIAS. He did speak with the Chief Mate, but only to inform him of the purpose of the inspection and to ask him some questions about the fire. The Coast Guard representatives remained on board for about one hour. Arco's employees knew that members of the Coast Guard were on the ELIAS, but they did not know the purpose of the visit and apparently did not inquire. Arco alleges that its employees assumed that the inspection was an ordinary spot check, since the Coast Guard frequently boarded tankers at Fort Mifflin.
The ELIAS continued to discharge during and after the Coast Guard inspection. That evening, the ELIAS caught fire and exploded.
The appellants contend that a reasonable inspection by the Coast Guard would have disclosed the origins of the April 7 fire at sea, which were defects in the tanker's equipment (not identified in the briefs) that also caused the April 9 fire and explosion. Under the circumstances, they say, the Coast Guard did not exercise reasonable care because the inspectors were not expert fire inspectors; they did not interview members of the crew who had witnessed the fire at sea; they did not order immediate cessation of discharging, even though the risk of explosion increased as the tanker emptied;*fn4 and they did not inform Arco's employees about the fire at sea.
The appellants make two arguments for reversal. First, they assert that they are entitled to sue the government directly under the PWSA, which, they believe, requires the Coast Guard to ensure the safety of tanker discharge operations for the benefit of the tanker's crew and the owners of adjacent property. Second, they assert that they have stated a claim against the government under general maritime tort law, either because they relied on the inspection to their detriment or because the Coast Guard increased the risk of harm by inspecting the vessel but not stopping the discharging operation. This second argument is based on the familiar tort doctrine of good samaritan liability. See Restatement (Second) of Torts §§ 323, 324A (1965) [hereinafter cited as "Restatement"].
The gist of the government's response is that under the facts and the law the Coast Guard owed no duty of care to the appellants. The government argues that the activities authorized by the PWSA are discretionary and that, in any event, the appellants have no right of action under the Act. With respect to appellants' second ground for reversal, the government contends that appellants have not pleaded or offered to prove facts that satisfy the elements of the good samaritan doctrine.
We first address the contention that the appellants can sue the United States directly under the PWSA to enforce the Coast Guard's statutory responsibilities. This is a question of first impression. At the time of the events in question, the PWSA provided:
In order to prevent damage to, or the destruction or loss of any vessel, bridge, or other structure on or in the navigable waters of the United States, or any land structure or shore area immediately adjacent to those waters; and to protect the navigable waters and the resources therein from environmental harm resulting from vessel or structure damage, destruction, or loss, the Secretary of the department in which the Coast Guard is operating may --
(4) direct the anchoring, mooring, or movement of a vessel when necessary to prevent damage to or by that vessel or her ...