in the Matter of the Complaint of Vulcan Materials Company, owner of the Tug William… v. CASSITA MASSIAH, Executor of the estate of Freddie N. Porter, Jr., No. 10-1041 …

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 IN THE MATTER OF THE
COMPLAINT OF VULCAN MATERIALS
COMPANY, owner of the Tug
William E. Polle, for exoneration
from or limitation of liability,
Plaintiff-Appellant,
v.
CASSITA MASSIAH, Executor of the
estate of Freddie N. Porter, Jr., No. 10-1041  deceased,
Claimant-Appellee,
v.
UNITED STATES OF AMERICA,
Third Party Defendant-Appellee.
AMERICAN WATERWAYS OPERATORS,
Amicus Supporting Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., Senior District Judge.
(2:08-cv-00377-HCM)
Argued: March 23, 2011
Decided: May 6, 2011
Before WILKINSON, SHEDD, and DUNCAN,
Circuit Judges.

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Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Wilkinson and Judge Shedd joined.
COUNSEL
ARGUED: John Early Holloway, TROUTMAN SANDERS,
LLP, Norfolk, Virginia, for Appellant. Michael P. Abate,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C.; Daniel O. Rose, KREINDLER & KREINDLER,
New York, New York, for Appellees. ON BRIEF: Dawn Lee
Serafine, TROUTMAN SANDERS, LLP, Norfolk, Virginia,
for Appellant. Tony West, Assistant Attorney General,
Thomas M. Bondy, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., Neil MacBride, United States
Attorney, Alexandria, Virginia, for the United States. Megan
Wolfe Benett, Steven R. Pounian, KREINDLER &
KREINDLER, New York, New York; Michael F. Impr-
evento, BREIT DRESCHER & IMPREVENTO, PC, Norfolk,
Virginia, for Appellee Cassita Massiah. Robert W. McFar-
land, R. Trent Taylor, MCGUIREWOODS LLP, Norfolk,
Virginia, for Amicus Supporting Appellant.
OPINION
DUNCAN, Circuit Judge:
This appeal arises out of the death of Seaman Freddie N.
Porter, Jr. ("Porter"), who was killed during a Navy training
exercise when his rigid-hull inflatable boat ("RHIB") collided
with the WILLIAM E. POOLE1 tug as it was pushing an
eight-barge flotilla up the James River. Claimant-Appellee
1Although the tug’s name is the "WILLIAM E. POLLE," the district
court’s memorandum opinion and the parties’ briefs refer to the tug as the
"WILLIAM E. POOLE." For the sake of consistency, we do the same.
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Cassita Massiah ("Massiah"), as personal representative for
her son Porter’s estate, brought a wrongful death suit against
the tug owner, Plaintiff-Appellant Vulcan Materials Company
("Vulcan"). Vulcan, in turn, sought contribution from the
United States as co-tortfeasor. The district court awarded
$1,250,000 in damages to Porter’s family members but
refused, on sovereign immunity grounds, to allow Vulcan’s
third-party contribution claim to proceed. On appeal, Vulcan
challenges both the district court’s determination that it was
negligent for failing to post a proper lookout on the night of
the accident, and the court’s dismissal of Vulcan’s third-party
claim for lack of subject matter jurisdiction. For the following
reasons, we affirm.
I.
A.
We recount the relevant facts as found by the district court.
Nineteen-year-old Porter, a land-based supply clerk, volun-
teered to attend a two-week coxswain course. On October 11,
2007, he and fellow Navy personnel departed from the United
States Navy’s Little Creek Amphibious Base ("Little Creek")
in five RHIBs to complete the course’s final training exercise,
which provided the students with an opportunity to practice
navigating small vessels at night. Before departing Little
Creek that afternoon, each RHIB’s crew verified the proper
functioning of its boat’s running lights. The RHIBs—with
call-signs Tango-1, Tango-2, Tango-3, Sierra Bravo, and
Sierra Charlie—then navigated up the James River to Jordan
Point, where the crews disembarked, had dinner, and waited
for nightfall.
After darkness fell, the RHIBs’ crews "conducted another
pre-operation inspection, and again verified that all lights on
the boats—including an all-around white light mounted next
to the radar dome on the aft mast, and a set of red and green
running lights mounted forward in the RHIBs—were func-
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tioning properly." J.A. 1095. Porter boarded his RHIB,
Tango-2, and took the forward lookout position, while a fel-
low student in the course, Petty Officer Esteban Angeles,
piloted the boat. Petty Officer Albert Bollinger acted as the
boat’s safety observer and qualified coxswain.
While the Navy RHIBs were making their way back down
the James River that evening, Captain Rondy Wooldridge was
maneuvering his tug, the WILLIAM E. POOLE, upriver
toward Richmond. The tug had left Norfolk earlier that day
pushing a flotilla of six barges. With thirty-three years of
experience navigating the James, Captain Wooldridge had
made similar trips "thousands of times," J.A. 1096, and was
doing so this time as a Vulcan employee.
Approximately one hour before nightfall, Captain Wool-
dridge instructed his deckhand, Joseph Christensen
("Christensen"), to position and illuminate the flotilla’s run-
ning lights. Christensen placed a green light on the starboard
(right) side of the flotilla, a red light on the port (left) side of
the flotilla, and a flashing amber light as close to the center
as possible.
After passing under the James River Bridge, the POOLE
stopped at Hog Island and picked up two additional barges.
The final eight-barge flotilla configuration comprised a for-
ward row of three barges, a middle row of three barges, and
an aft row of two barges (in the center and starboard posi-
tions), with the POOLE positioned behind the aft center
barge. Because each barge measured nearly 200 feet long, the
flotilla extended about 585 feet in front of the POOLE. Since
the barges were empty, their decks rose approximately twelve
feet above the water line. This arrangement created a blind
spot extending approximately 600 feet in front of the barges.
From their perch in the POOLE’s wheelhouse, Captain Wool-
dridge and Christensen could not see the river for some dis-
tance in front of the flotilla, much like a driver is unable to
see the road immediately in front of his car.
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Christensen rearranged the flotilla’s running lights to
account for the new configuration. With the lights in place,
the POOLE departed Hog Island around 10:00 p.m. and con-
tinued up the river toward Jamestown Island. Captain Wool-
dridge was at the helm and Christensen was standing lookout
with him in the wheelhouse. On that particular night, "there
was little if any ambient light," and "the shores, the water, and
the sky were dark." J.A. 1098. It was "windy and the water
was choppy, with swells of one (1) to two (2) feet" that
"caused clutter on the POOLE’s radar, making it difficult to
see objects with small radar returns—such as the RHIBs—on
the radar screen." Id.
The James River forms an "S-curve" between Hog Island
and Jamestown Island. Although the river is more than a mile
wide throughout this area, the shipping channel is nar-
row—only 300 feet across. As the POOLE cleared the final
turn in the S-curve and continued upriver toward navigational
buoys 53 and 54, the Navy RHIBs were traveling downriver
toward the same buoys.
The crew onboard Tango-2 noticed, but could not identify,
a white light in the direction of the buoys. The light turned out
to be the tug’s spotlight, which Captain Wooldridge left illu-
minated on the port bow of the flotilla as he traveled upriver.
Perceiving the light ahead, Tango-2’s safety inspector, Bol-
linger, instructed the boat’s driver, Angeles, to slow down and
assess the situation before proceeding. Sierra Bravo’s crew
observed Tango-2 slow down and did the same. Both boats
"drifted in the shipping channel with their bows pointed south
while their crews tried to make out the source of the light."
J.A. 1098. Petty Officer Julio Rodriguez Vargas, who was
piloting Sierra Bravo, noticed a large object on his radar but
could not identify it and did not inform Tango-2 of his obser-
vations. Although Tango-2 was also equipped with radar, no
one aboard Tango-2 used it: "Angeles, who was in the opera-
tor’s chair, did not know the RHIB was equipped with radar,
and Bollinger, the boat’s safety observer, did not know how
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to use it." J.A. 1099. The other RHIBs farther downstream
had seen the same light and consequently moved to the side
of the shipping channel, eventually identifying the light as
belonging to a tug. One of the instructors testified that there
was radio chatter among the RHIBs about a tug in the river,
but the Tango-2 crew did not recall hearing anything over the
radio.
Before Tango-2 and Sierra Bravo could identify the source
of the white light, the front of the POOLE’s flotilla "emerged
from the darkness on their port side." Id. Sierra Bravo avoided
collision with the barge, but "Tango-2 was not so lucky." Id.
Petty Officers Angeles and Bollinger leapt from the RHIB
and ultimately swam their way to safety, but Seaman Porter
did not survive the accident. His body later washed ashore,
and an autopsy confirmed he sustained a fatal blow to the
head from a tug propeller. The POOLE’s crew testified that,
while they had observed the other RHIBs pass the flotilla that
night, they were completely unaware they had hit Tango-2
until the following day, when they were contacted by the
Coast Guard.
Porter was survived by his mother (Massiah), father, and
seven siblings. Shortly after Porter’s death, the United States
made a death gratuity payment to Massiah in the amount of
one hundred thousand dollars ($100,000) and reimbursed her
for Porter’s funeral and burial expenses, in the amount of
seven thousand twenty dollars ($7,020).
B.
In August 2008, Vulcan, as owner of the POOLE, filed a
complaint for exoneration from, or limitation of, liability for
the collision pursuant to the Limitation of Liability Act, 46
U.S.C. § 30501-30512.2 Massiah, as executor of her son Por-
2The Act allows a shipowner to limit his liability for any "injury by col-
lision" occurring "without [his] privity or knowledge" to the "value of the
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ter’s estate, answered Vulcan’s complaint and submitted an
admiralty claim against it alleging negligence. Vulcan, in
turn, filed a third-party complaint against the United States
pursuant to the Public Vessels Act ("PVA"), 46 U.S.C.
§ 31101, and the Suits in Admiralty Act ("SAA"), 46 U.S.C.
§ 30901, alleging that the Navy was liable for the accident
and seeking contribution for any damages owed to Porter’s
estate.
The United States answered the third-party complaint and
filed a counterclaim against Vulcan demanding a judgment
for "repairs to or replacement of" the Tango-2, the cost of pro-
viding medical care to the other crewmen in the Tango-2, and
the cost of death benefits paid to Porter’s estate. J.A. 71. The
government then moved to dismiss Vulcan’s contribution
claim on the ground that it had not waived its sovereign
immunity for contribution claims brought by a defendant held
liable to a servicemember for injuries incurred incident to ser-
vice, relying on the Supreme Court’s decisions in Feres v.
United States, 340 U.S. 135 (1950), and Stencel Aero Engi-
neering Corp. v. United States, 431 U.S. 666 (1977). The dis-
trict court reserved judgment on the sovereign immunity issue
raised in the government’s motion and proceeded to a bench
trial on the question of negligence.
vessel and pending freight." 46 U.S.C. § 30505. Under the Act, and the
corresponding Federal Rules of Civil Procedure for Admiralty and Mari-
time Claims ("Admiralty Rules"), a shipowner may seek to limit his liabil-
ity by filing suit in a district court within six months of receiving notice
of a claim related to a marine casualty. Id. at § 30511; Admiralty Rule
F(1). After depositing with the court an amount of money, or approved
security, equal to his interest in the vessel and the pending freight, "all
claims and proceedings against the owner related to the matter in question
shall cease." Id. at 30511(b), (c); Admiralty Rule F(1). The district court
must then determine whether the shipowner is entitled to a limitation of
liability. Hellenic Lines, Ltd. v. Prudential Lines, Inc., 813 F.2d 634, 638
(4th Cir. 1987) (explaining that a shipowner may limit his liability only
by "proving that he was without knowledge of the condition or negligence
responsible for the collision").
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At the conclusion of trial, the district court found in an oral
ruling and subsequent written decision that both the United
States and Vulcan were negligent on the night of October 11,
2007, and that "Porter’s death was proximately caused by the
negligence of both the United States and Vulcan." J.A. 1101.
The court found the United States negligent for having "oper-
ated an unseaworthy vessel by manning Tango-2 with an
incompetent crew." Id. It based its negligence finding on the
inexperience of the sailors, the fact that Tango-2 traveled
downriver on the port side of the channel in violation of
Inland Navigation Rule 9’s ("Rule 9") requirement that ves-
sels stay on the starboard side, the safety observer’s decision
to stop the boat in the middle of the shipping channel in fur-
ther violation of Rule 9, and the fact that Tango-2 was
equipped with radar equipment that its crew either did not
know about or did not know how to use.
The district court determined Vulcan was at fault because
it failed "to post a proper lookout," as required by Inland Nav-
igation Rule 5 ("Rule 5"). Id. at 1102. The court reasoned
that, given the conditions on the night in question and the
"significant blind spot" created by the flotilla, Vulcan had an
obligation under Rule 5 "to post a lookout on the bow of the
leading barge, in addition to, not in lieu of, the deckhand who
[was] with the captain" in the wheelhouse. J.A. 1084-85. In
reaching its decision, the court relied on testimony from Vul-
can’s own credible expert witness, Captain Ray Robbins
("Captain Robbins"), who indicated that the decision to post
a lookout is generally informed by the presence or absence of
certain conditions. The district court found these conditions to
be present on October 11, 2007: it was a "dark and windy"
night with "choppy" water that caused clutter on the
POOLE’s radar; the POOLE "was in a narrow channel and,
because of the eight barges it was pushing, had a significant
blind spot"; and "small boat traffic is common on the James
River." Id. at 1102. Moreover, the court made a finding that
"the Captain’s and his deckhand’s visions were impaired,"
evidenced by the fact that "the Captain kept his searchlight
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activated for an extended period of time in order to assist his
vision while negotiating a difficult turning maneuver" and the
fact that "neither the captain nor his deckhand saw Tango-2,
although they had no difficulty seeing" the other four RHIBs.
Id. at 1103. In sum, the court ruled that "[a]ll of the factors
that inform whether to post a lookout pursuant to Rule 5"
were satisfied, and Vulcan was negligent in failing to post
one. Id.
Having found Vulcan negligent, the court next addressed
whether it was entitled to limitation of liability. By statute,
"the liability of the owner of a vessel for any claim, debt, or
liability . . . shall not exceed the value of the vessel and pend-
ing freight" if the negligent act or condition occurred "without
the privity or knowledge of the owner." 46 U.S.C. § 30505.
Observing that a shipowner seeking limitation of liability
bears the burden of proving a lack of privity or knowledge,
the court found that Vulcan "should have known that a flotilla
traveling on the James River, under the circumstances that
prevailed on October 11, 2007, would need a lookout on the
bow of the forward barge" and was responsible for "mak[ing]
provisions for the availability of such lookout." J.A. 1105.
The court held that Vulcan was therefore not entitled to limi-
tation of liability.
The court apportioned 80 percent of the fault to the govern-
ment and 20 percent to Vulcan, and awarded a total of
$1,250,000 in damages to Porter’s family members.3
3The court declined to enter judgment at the time of its oral findings,
reserving decision on whether the government was protected from liability
under either the Feres-Stencel Aero doctrine or the discretionary function
exception. In its subsequent written decision, the court reiterated the bases
for its negligence finding but did not discuss the government’s argument
that its selection of personnel for the training mission was protected by the
discretionary function exception. Because we find that the Feres-Stencel
Aero doctrine applies here, we need not reach the government’s alternative
discretionary function argument.
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In its written decision, the court addressed Vulcan’s claim
against the United States for contribution. The government
argued that Vulcan’s claim was barred by the Feres-Stencel
Aero doctrine, which insulates the United States from liability
for third-party claims seeking indemnification or contribution
for damages paid to a servicemember injured incident to ser-
vice. See Feres, 340 U.S. at 135; Stencel Aero, 431 U.S. at
666. The district court agreed. In reaching this determination,
the court focused on the presence of two of the three ratio-
nales underlying the Feres-Stencel Aero doctrine: (1) the exis-
tence of a statutory no-fault compensation scheme (the
Veterans’ Benefits Act) providing a death benefit to Seaman
Porter, and (2) the adverse effect on military discipline that
would result from a lawsuit challenging negligent orders or
acts made or committed in the course of military duty. The
district court also distinguished this Court’s prior decision in
Ionian Glow Marine, Inc. v. United States, 670 F.2d 462 (4th
Cir. 1982), on the ground that, in that case, unlike the present
one, the lawsuit did not pose a risk of harm to military disci-
pline because the government stipulated to its degree of fault,
thereby obviating the need to litigate its liability. The court
further noted that the Supreme Court’s opinion in Lockheed
Aircraft Corp. v. United States, 460 U.S. 190 (1983), "under-
mines a key step in the logic of Ionian Glow, thereby casting
doubt on the propriety of extending Ionian Glow beyond its
facts." J.A. 1111.
For these reasons, the district court granted the United
States’ motion to dismiss Vulcan’s contribution claim, and
dismissed the United States as a party to this action. It then
entered judgment against Vulcan for the full amount of dam-
ages. This appeal followed.
II.
On appeal, Vulcan advances two main arguments. It first
contends that the district court erred by finding Vulcan negli-
gent for failing to post a lookout at the front of the flotilla on
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the night of October 11, 2007. Vulcan next argues that, even
if the district court did not err in its negligence finding, it nev-
ertheless erred by holding that the Feres-Stencel Aero doc-
trine barred Vulcan’s third-party contribution claim against
the United States for tort damages paid by Vulcan to a ser-
vicemember killed in the course of military service. Vulcan
specifically contends that this court’s decision in Ionian Glow
governs the outcome here and permits Vulcan to seek contri-
bution from the United States for any tort damages owed to
Porter’s estate. We address each argument in turn.
A.
We begin by considering Vulcan’s challenge to the district
court’s finding that it negligently failed to post a proper look-
out, as required by Rule 5. Vulcan’s primary contention is that
the district court erred as a matter of law by misapprehending
and misapplying Rule 5’s legal standard. It also claims the
district court "made insufficient findings to support a causa-
tion finding" in this case, Appellant’s Br. at 38, abused its dis-
cretion by failing to apply an adverse inference against the
government for its alleged spoliation of evidence, and misap-
plied the rule regarding which party carried the burden of
proof as to alleged violations of the Inland Navigation Rules.
We treat a district court’s findings of negligence as findings
of fact reviewable under Fed. R. Civ. P. 52(a), Bonds v. Mor-
tensen & Lange, 717 F.2d 123, 125 (4th Cir. 1983), and
reverse only if the court’s findings are clearly erroneous or
based on a "misconception of the appropriate legal standard,"
Jiminez v. Mary Washington Coll., 57 F.3d 369, 378-79 (4th
Cir. 1995).
1.
Vulcan’s primary challenge to the district court’s negli-
gence holding is that the court misapplied the legal standard
articulated under Rule 5. Rule 5 requires vessels to post "a
proper look-out by sight and hearing as well as by all avail-
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able means appropriate in the prevailing circumstances and
conditions so as to make a full appraisal of the situation and
of the risk of collision." 33 U.S.C. § 2005. Vulcan argues that
the "court’s fact findings spell-out clearly that the tug had a
classically proper lookout under Rule 5," Appellant’s Br. at
31, and that by concluding otherwise, the district court misun-
derstood the goal and application of Rule 5.
As evidence that the court misapplied the proper legal stan-
dard, Vulcan first cites the court’s reliance on testimony pro-
vided by Vulcan’s expert witness, Captain Robbins, urging
that "the court badly misunderstood his clear testimony." Id.
at 33. Captain Robbins testified that the decision as to what
amounts to a proper lookout, as required by Rule 5, is
informed by the following conditions: (1) "visibility," which
decreases when it is a "dark night," J.A. 838-39, (2) the exis-
tence of a "blind spot" or a "dead zone," J.A. 842, (3) naviga-
tion through a "narrow channel," J.A. 842-43, and (4) the
presence of "small boat traffic," J.A. 845. Captain Robbins
further testified that, in his view, the conditions on the night
of October 11, 2007, did not require the posting of an addi-
tional lookout. The district court, weighing the same factors
as Captain Robbins, reached a different conclusion. It found
that the presence of all the above-mentioned conditions in fact
counseled in favor of requiring the posting of a lookout for-
ward that evening. The court reached this conclusion based on
its findings that
the night was dark and windy; the water was choppy,
which caused clutter on the POOLE’s radar and
made it difficult to see small boat traffic on the radar
screen; the POOLE was in a narrow channel and,
because of the eight barges it was pushing, had a sig-
nificant blind spot; and Captain Wooldridge testified
that small boat traffic is common on the James
River.
J.A. 1102; see also J.A. 1083 (determining, as factfinder, that
"all of the factors which even the defendant’s expert agreed
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should be considered" were present, "including a dark night,
bad weather, . . . the narrow channel, . . . the blind spot, . . .
and the presence of small traffic"). Record evidence supports
these findings. Despite Vulcan’s argument to the contrary, the
district court’s disagreement with Captain Robbins’ assess-
ment does not mean it misunderstood his testimony or misap-
prehended Rule 5’s requirements. As factfinder, the court
simply reached an alternative, reasonable conclusion based on
the weight it afforded the evidence presented.
In its amicus brief, the American Waterways Operators
("AWO")4 also challenges the district court’s treatment of
Captain Robbins’ testimony, claiming that the court erred by
relying on the factors articulated by Captain Robbins as
opposed to those listed in the legislative history of Rule 5.
That history states that when considering whether to post an
additional lookout, "[f]ull account shall be taken of all rele-
vant factors, including but not limited to the [1] state of the
weather, [2] conditions of visibility, [3] traffic density, and [4]
proximity of navigational hazards." S. Rep. No. 96-079 at 7-
8, reprinted in 1980 U.S.C.C.A.N. 7068, 7075 (1980). AWO
contends that "[a]ll vessels have blind spots so it is incongru-
ous to find, as the district court seemingly did in this case, that
a ‘blind spot’ is an ‘obstruction’ or restriction of visibility that
Congress considers to be a circumstance requiring an addi-
tional lookout on the end of the flotilla." Amicus Br. at 6.
We find this argument unavailing for two reasons. First, the
legislative history specifically indicates that the enumerated
factors "include" but "are not limited to" those listed—in
other words, the list is neither exhaustive nor exclusive.
Moreover, with the exception of the court’s reliance on Cap-
tain Robbins’ testimony that the existence of a blind spot may
4AWO is "the national trade association for the inland and coastal tug-
boat, towboat, and barge industry." Amicus Br. at 1. AWO has 350 mem-
ber companies and represents "the largest segment of the U.S.-flag
domestic fleet." Id.
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properly be considered as a factor, every other factor upon
which the court relied is enumerated in the legislative history.
Second, while we agree that, since all boats have blind spots,
Congress could not have intended that the mere presence of
a blind spot would serve as a condition automatically requir-
ing an additional lookout, we see nothing incongruous about
taking into consideration—as the district court did here—the
size of the blind spot when conducting a Rule 5 analysis. See,
e.g., J.A. 1102 (explaining that the POOLE "had a significant
blind spot" created by the eight barges it was pushing); J.A.
1103 (distinguishing the especially large blind spot as one
"created by the eight-barge flotilla riding high in the water").
As further evidence that the court misapplied the proper
legal standard under Rule 5, Vulcan points to the court’s
observation that, from the wheelhouse, the Captain and his
deckhand were "attentive" and had "expansive," "all around
views" of the flotilla’s "operating environment." Appellant’s
Br. at 31 (citing J.A. 1084, 1097, 1102). These findings, Vul-
can contends, establish that an additional lookout was unnec-
essary, because the tug’s two lookouts "would have seen any
vessel that was displaying proper lights" that evening. Id.
Relatedly, Vulcan argues that the purpose of Rule 5 is to
avoid the "risk of collision." Id. As such, Vulcan contends, the
duty imposed on the POOLE by Rule 5 was "to keep a look-
out to see the other vessel well before it got into the blind
spot" and created a risk of collision. Id. (emphasis in the origi-
nal). According to Vulcan, the district court’s fact findings
established that the tug’s two lookouts were properly posted
and would have seen any properly-lit vessel long before it
passed into the tug’s blind spot and created a risk of collision,
obviating the need for posting a lookout forward.
Vulcan’s argument relies on an incomplete version of the
facts. Additional fact findings made by the district court indi-
cate the conditions were such that the two lookouts in the
wheelhouse would not necessarily have seen Tango-2, or
another vessel, before it passed into the tug’s blind spot. Spe-
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cifically, the court found that "the Captain’s and his deck-
hand’s visions were impaired," not just by the significant
blind spot created by the flotilla, but also by the fact that they
were "negotiating a difficult turning maneuver with this large
flotilla in a narrow channel on a dark night in choppy waters."
J.A. 1103. Their impaired vision was evidenced by the "Cap-
tain [keeping] his searchlight activated for an extended period
of time" and the fact that neither lookout "saw Tango-2,
although they had no difficulty seeing Tango-1, Tango-3,
Sierra Charlie, and what turned out to be Sierra Bravo, which
they thought was a fishing vessel." Id. With their vision
impaired, the tug’s lookouts would not have necessarily seen
a properly-lit vessel before it passed into the tug’s blind spot.5
Finally, Vulcan challenges the district court’s application of
Rule 5 by asserting that the court’s fact findings prove a look-
out forward would not have served to limit the risk of colli-
sion in this instance. Vulcan points to the court’s observation
that "a lookout stationed at the bow of the forward barge
probably could not have warned the Captain in time to change
his course." J.A. 1103. This finding does not mean, as Vulcan
suggests, that once the Tango-2 had passed into the blind spot,
"it was too late to avoid the collision." Appellant’s Br. at 31.
On the contrary, the district court explicitly found that, even
if it was too late for the Captain to change course, a lookout
5Vulcan also contends that where, as here, "one ship has, by wrong
maneuvers, placed another ship in a position of extreme danger, that other
ship will not be held to blame if she has done something wrong and has
not been maneuvered with perfect skill and presence of mind." Appellant’s
Br. at 33 (quoting The Blue Jacket, 144 U.S. 371, 392 (1892)). Vulcan rea-
sons that once the Tango-2 passed into the tug’s blind spot, the two vessels
were in extremis, and Vulcan cannot be held liable for failing to avoid the
collision at the last minute. Vulcan bases this argument on an erroneous
belief that "[t]he court’s finding of tug negligence was limited to the tug’s
inability to see the Tango-2 once it passed within the blind spot when the
vessels were already in extremis." Id. at 34. Vulcan’s argument, as
explained above, ignores the district court’s finding that the lookouts’
vision was impaired by more than just the blind spot, and we therefore
reject it.
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forward still could have helped avoid the collision by "warn[-
ing] Tango-2 and alert[ing] the Captain to sound his whistle
(horn) as a further warning to Tango-2." J.A. 1103.
2.
In addition to challenging the district court’s application of
Rule 5, Vulcan attacks the court’s negligence ruling on other
grounds.
i.
First, Vulcan contends that the court "made insufficient
findings to support" its conclusion that Vulcan’s failure to
keep a proper lookout was a proximate cause of the collision.
Appellant’s Br. at 38. We find this argument unavailing
because, at bottom, it is simply a disagreement with the dis-
trict court’s interpretation of the facts. Vulcan believes that,
based on the record evidence and the court’s findings, only
one possible inference may be drawn: if the lookouts did not
see Tango-2, it was because "Tango-2 was not properly dis-
playing its lights." Appellant’s Br. at 41. While another fact-
finder might have reached the conclusion Vulcan advocates,
the district court’s determination to the contrary is not clearly
erroneous. The court repeatedly expressed the view that the
RHIBs’ running lights were working properly. See, e.g., J.A.
1095 (finding that, before departing Jordan Point, the Navy
crews "verified that all lights on the boats—including an all-
around white light mounted next to the radar dome on the aft
mast, and a set of red and green running lights mounted for-
ward in the RHIBs—were functioning properly"). We find
that there was sufficient evidence from which the court could
conclude that the boats were properly lit and that any alleged
obstruction or malfunction of the lights did not contribute to
the accident.
ii.
Vulcan next argues that the district court erred by failing to
apply an adverse inference against the government for its
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alleged destruction of evidence. Vulcan specifically claims
that the Coast Guard improperly removed the light bulbs from
Tango-2’s red and green running lights during its investiga-
tion of the accident. Those bulbs, according to Vulcan, were
"the only evidence that could show whether Tango-2’s lights
conformed to Inland Rule 22(c)." Appellant’s Br. at 45.
The application of an adverse inference "requires a show-
ing that the party knew the evidence was relevant to some
issue at trial and that his willful conduct resulted in its loss or
destruction." Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446,
450 (4th Cir. 2004) (internal quotations omitted) (emphasis
added). The district court’s refusal to apply the inference
"must stand unless it was an abuse of [its] ‘broad discretion’
in this regard." Id. (quoting Cole v. Keller Indus., Inc., 132
F.3d 1044, 1046-47 (4th Cir. 1998)).
Here, the district court found "no evidence of spoliation of
the evidence on the part of the Navy." J.A. 1073. In so find-
ing, the court did not abuse its broad discretion. Record evi-
dence established that the Coast Guard inspectors, not Navy
personnel, removed the bulbs, and that the Navy personnel
did not have control over the Coast Guard inspectors. This
fact supports the conclusion that the loss or destruction of evi-
dence was not the result of the Navy’s willful conduct. See
Hodge, 360 F.3d at 450; see also Norfolk and Western Ry. Co.
v. Transp. Commc’ns, 17 F.3d 696, 702 (4th Cir. 1994)
(explaining that an adverse inference is properly drawn
"against a party who fails to come forward with relevant evi-
dence within its control"); Beaven v. U.S. Dept. of Justice,
622 F.3d 540, 553 (6th Cir. 2010) (stating that a party seeking
an adverse inference instruction must establish, among other
things, that the destruction of evidence was caused by "the
party having control over the evidence").
iii.
Finally, Vulcan maintains that the court did not properly
apply the Pennsylvania rule. The Pennsylvania rule requires
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that, in order to avoid liability, a vessel that violates "a statu-
tory rule intended to prevent collisions" must prove that the
violation could not have contributed to the collision. The
Pennsylvania, 86 U.S. 125, 136 (1874); see also Evergreen
Int’l, S.A. v. Norfolk Dredging Co., 531 F.3d 302, 310 (4th
Cir. 2008).
Vulcan argues that the Pennsylvania rule should have been
applied against the government with regard to its alleged vio-
lation of Inland Rule 23. It specifically asserts that the court
found "the Tango-2’s white light was partially obstructed" in
violation of Inland Rule 23, and that, under the Pennsylvania
rule, the Navy’s statutory violation required the district court
to shift the burden to the United States to prove that the
obstructed light could not have played any role in the colli-
sion. Appellant’s Br. at 42. Contrary to Vulcan’s characteriza-
tion, however, at several points in the record, the district court
explicitly found that the RHIB’s running lights were properly
lit, did not suffer from any "impairment," and were not a fac-
tor in the collision. See J.A. 1035, 1053-54, 1095. We there-
fore see no reason to alter the court’s apportionment of fault
determination. Cf. Hellenic Lines, Ltd. v. Prudential Lines,
Inc., 813 F.2d 634, 638 (4th Cir. 1987) (holding that, because
the district court found that the vessel’s alleged statutory vio-
lation "could not have been a contributing cause to the colli-
sion," consideration of that alleged violation when
apportioning fault would be "a mistake of law").6
6Vulcan further asserts that the district court erred by requiring it to
prove, pursuant to the Pennsylvania rule, that its failure to post a lookout
could not have been a contributing cause of the collision. It specifically
contends that the Pennsylvania rule applies "only to violations of statutes
that delineate a clear legal duty," and because the duty to keep a proper
lookout "calls for the exercise of professional judgment and assessment,
Rule 5 should not be subject to the Pennsylvania presumption." Appel-
lant’s Br. at 38. It is not apparent to us, however, that the district court
required Vulcan to prove that the failure to post an additional lookout con-
tributed to the collision. Rather, the court simply found that various "fac-
tors indicate[d] that a lookout [wa]s required," and that Vulcan presented
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In sum, to the extent Vulcan’s appeal challenges the district
court’s application of the legal standard articulated by Rule 5,
the court’s oral and written decisions evince that it both
understood and properly applied the appropriate standard. The
application of that standard required the court to make find-
ings of fact, none of which were clearly erroneous. We find
Vulcan’s additional arguments related to causation, spoliation
of evidence, and application of the Pennsylvania rule simi-
larly unavailing. We therefore decline to disturb the district
court’s findings as to liability for the collision and apportion-
ment of fault.
B.
We next consider Vulcan’s challenge to the district court’s
dismissal of its contribution claim for lack of subject matter
jurisdiction. The district court found that the Feres-Stencel
Aero doctrine applies to Vulcan’s action and bars its attempt
to obtain contribution from the United States for damages as
to which the government has not waived its sovereign immu-
nity. We review de novo a district court’s dismissal under
Rule 12(b)(1) for lack of subject matter jurisdiction. Welch v.
United States, 409 F.3d 646, 650 (4th Cir. 2005).
By way of background, the Feres-Stencel Aero doctrine
arises in the context of the United States as a sovereign. It is
well established that the United States cannot be held liable
in tort unless a claimant demonstrates that his right to sue falls
within the terms of a waiver of sovereign immunity. See
United States v. Mitchell, 463 U.S. 206, 212 (1983); Randall
v. United States, 95 F.3d 339, 345 (4th Cir. 1996).
no evidence in response "to suggest that a third individual could not be
posted." J.A. 1103. But even if the district court did impose the burden of
proof on Vulcan, under our precedent, the Pennsylvania rule applies
equally to a Rule 5 violation, see Yarmouth Sea Prods., Ltd. v. Scully, 131
F.3d 389, 394 (4th Cir. 1997), and application of the rule here is not error.
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Vulcan filed its third-party complaint against the United
States under the Public Vessels Act ("PVA"), 46 U.S.C.
§§ 31101-13, and the Suits in Admiralty Act ("SAA"), 46
U.S.C. §§ 30901-30918. These provisions waive the govern-
ment’s sovereign immunity "for causes of action arising out
of the operation of vessels owned by or operated for the
United States." Manuel v. United States, 50 F.3d 1253, 1255
(4th Cir. 1995); see also 46 U.S.C. § 31102 (providing that "a
civil action in personam in admiralty may be brought . . .
against the United States for . . . damages caused by a public
vessel of the United States"); id. § 30903 (providing that "a
civil action in admiralty in personam may be brought against
the United States" for a case involving a privately owned ves-
sel). As the Supreme Court explained in Weyerhauser S.S. Co.
v. United States, 372 U.S. 597 (1963), the PVA "was intended
to impose on the United States the same liability (apart from
seizure or arrest under a libel in rem) as is imposed by the
admiralty law on the private shipowner . . . ." Id. at 600.
However, while the PVA and SAA establish a broad waiver
of sovereign immunity for admiralty-related claims against
the United States, this waiver is not without limits. One such
limit was created by Feres v. United States, in which the
Supreme Court barred tort claims against the United States
brought by servicemembers for injuries that occur "incident to
service."7 Feres, 340 U.S. at 146; see also United States v.
7The claimant in Feres sought recovery from the United States under
the Federal Tort Claims Act ("FTCA"). The FTCA effects a limited
waiver of the United States’ sovereign immunity for claims involving
"personal injury or death caused by the negligent or wrongful act or omis-
sion of any employee of the Government while acting within the scope of
his office or employment." 28 U.S.C. § 1346(b)(1). This court and others
have since found that, in addition to barring suits brought pursuant to the
FTCA, Feres applies equally to admiralty tort claims brought under the
SAA and the PVA by servicemen injured while on duty. See, e.g., Blakey
v. U.S.S. Iowa, 991 F.2d 148, 151 (4th Cir. 1993); Potts v. United States,
723 F.2d 20, 21-22 (6th Cir. 1983); Cusanelli v. Klaver, 698 F.2d 82, 85
(2d Cir. 1983); Charland v. United States, 615 F.2d 508, 509 (9th Cir.
1980).
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Johnson, 481 U.S. 681, 687 (1987) (observing that "the Feres
doctrine has been applied consistently to bar all suits on
behalf of service members against the Government based
upon service-related injuries").
Feres’s holding was later extended to bar third-party suits
against the government seeking indemnification for damages
owed to servicemembers or their estates. In Stencel Aero, a
National Guard officer suffered injuries when his ejection
equipment on a military aircraft malfunctioned during an in-
flight emergency. 431 U.S. at 666. The officer sued both Sten-
cel Aero Engineering Corporation ("Stencel Aero"), as the
manufacturer of the ejection equipment, and the United States
for damages. Id. at 668. Stencel Aero, in turn, sought indem-
nity from the United States. Id. The Court concluded that "the
right of a third party to recover in an indemnity action against
the United States . . . must be held limited by the rationale of
Feres where the injured party is a serviceman." Id. at 674.
The Stencel Aero Court offered three rationales for preserv-
ing the United States’ immunity to tort actions involving inju-
ries to military personnel, whether brought by the soldier
directly or by a third party. First, the relationship between the
government and its military personnel is "distinctively federal
in character" and requires a uniform federal remedy that does
not vary upon the situs of the incident. Id. at 671. Second,
Congress created a "generous military compensation scheme"
under the Veterans’ Benefits Act that provides a "swift, effi-
cient remedy for the injured serviceman" while establishing
an "upper limit of liability for the Government"—a scheme
whose purpose would be frustrated by allowing third-party
claims for contribution. Id. at 672-73. Third, litigation over
whether one servicemember negligently harmed another
would have negative effects on military discipline, because
the trial would "involve second-guessing military orders, and
would often require members of the Armed Services to testify
in court as to each other’s decisions and actions." Id. at 673.
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The government argues that Feres and Stencel Aero control
here. It places particular emphasis on the "military discipline"
rationale in arguing for the application of the Feres-Stencel
Aero doctrine to all suits involving servicemen injured inci-
dent to service, including suits brought in admiralty.
Vulcan, on the other hand, relies on our precedent in Ionian
Glow for its argument that Feres-Stencel Aero does not apply
in this context. Ionian Glow allowed a private vessel owner
to recover from the government for payments it made to three
servicemen injured in a mutual fault collision. According to
Vulcan, we thereby carved out an exception to Feres-Stencel
Aero that recognizes the unique character of accidents in
admiralty.
The interplay between the Feres-Stencel Aero doctrine and
Ionian Glow is at the heart of this appeal. The context of our
jurisprudence leading up to Ionian Glow and Supreme Court
precedent since that decision informs our analysis.
1.
We turn first to a brief examination of the line of cases
leading up to this court’s decision in Ionian Glow. Damages
in maritime collisions were traditionally apportioned accord-
ing to the so-called divided damages rule. Under this rule, the
percentage of fault was not litigated: each party to the colli-
sion "recover[ed] from the other one-half of its provable dam-
ages and court costs." Weyerhaeuser S.S. Co., 372 U.S. at
598, 600.
In Weyerhaeuser, a collision between a dredge owned by
the United States and a vessel owned by Weyerhaeuser
resulted in injury to a civilian government employee onboard
the dredge. The employee recovered compensation from the
government under the Federal Employees’ Compensation Act
("FECA"), and tort damages from Weyerhaeuser.
Weyerhaeuser filed a third-party suit seeking contribution
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from the government under the divided damages rule for the
government’s share of the employee’s tort recovery.
The government challenged Weyerhaeuser’s inclusion of
any part of the tort damages paid to the employee on the
ground that FECA’s exclusive liability provision, 5 U.S.C.
§ 8116(c), prevented the employee from suing the govern-
ment directly. By its express terms, § 8116(c) prohibits
actions against the United States by an "employee, his legal
representative, spouse, dependents, next of kin [or] any other
person otherwise entitled to recover damages from the United
States . . . because of the [employee’s] injury or death." Third
parties such as Weyerhaeuser, the government argued, were
included within the general phrase "anyone otherwise entitled
to recover damages." Id. at 600.
The Supreme Court rejected this argument and concluded
that FECA’s exclusive liability provision had been intended
to govern only the relationship "between the Government on
the one hand and its employees and their representatives or
dependents on the other." Id. at 601. It held that the traditional
admiralty divided damages rule allowed Weyerhaeuser to
include in its provable damages a settlement it paid to the
employee. The Court based its ruling on the fact that the par-
ties’ relationship was governed not by contract or FECA’s
exclusive liability provision, but instead by the divided dam-
ages rule: "There is no evidence whatever that Congress was
concerned with the rights of unrelated third parties, much less
of any purpose to disturb settled doctrines of admiralty law
affecting the mutual rights and liabilities of private shipown-
ers in collision cases." Id. at 601.
Twelve years later, in United States v. Reliable Transfer
Co., Inc., 421 U.S. 397 (1975), the Supreme Court rejected
the long-standing divided damages rule in favor of the mod-
ern comparative fault approach, id. at 410-11. The Court
found the traditional rule "unnecessarily crude and inequita-
ble" when the fault of the two parties "is markedly dispropor-
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tionate," given that in such cases, "it is in the interest of the
slightly negligent party to litigate the controversy in the hope
. . . a court [may] absolve it of all liability." Id. at 407-08.
Several years after the Supreme Court abrogated the
divided damages rule, this court decided Ionian Glow. There,
the M/V LIGHT, owned by Ionian Glow, collided with the
U.S.S. FRANCIS MARION, which resulted in personal inju-
ries to three sailors aboard the Navy vessel. 670 F.2d at 463.
Ionian Glow brought suit against the United States "seeking
apportionment of damages under the divided damage rule in
mutual fault collision cases in admiralty."8 Id. The United
States stipulated its degree of fault and agreed to pay 35 per-
cent of Ionian Glow’s provable damages. Consequently, the
sole issue for the court’s determination was "what damages
were provable." Id. The government argued that "to require it
to pay 35 percent of Ionian Glow’s settlement with the ser-
vicemen" would run afoul of the Feres-Stencel Aero doctrine
by "subject[ing] it to indirect liability on a claim that could
not directly be brought against the government." Id. This
court rejected the government’s argument, holding that
"[n]othing in Feres, Stencel Aero or the cases that follow"
prevented Ionian Glow from including in its provable dam-
ages the settlement claims it paid out to the injured service-
men. Id. at 464. It declared itself bound by Weyerhaeuser,
because there, the Supreme Court held that the long-standing
divided damages rule "must prevail over a statutory provision
which . . . limited the liability of one of the shipowners." Id.
(quoting Weyerhaeuser, 372 U.S. at 603).
8In Ionian Glow, this court did not discuss the demise of the divided
damages rule announced earlier in Reliable Transfer or that decision’s
impact, if any, on the Supreme Court’s earlier Weyerhaeuser holding. The
government contends, therefore, that "Ionian Glow’s reliance on
Weyerhaeuser and the divided damages rule renders it inapposite to the
case at bar," because "[a]fter Reliable Transfer, Vulcan can no longer
invoke the ‘full scope’ of that rule as the basis for its recovery from the
United States." Government’s Br. at 29-30. We need not address the gov-
ernment’s argument on this point, however, because the Supreme Court’s
Lockheed opinion, decided after Ionian Glow, resolves the issue before us.
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In so holding, this court found the admiralty/non-admiralty
distinction determinative. It reasoned that, had Ionian Glow’s
suit been an indemnification action brought under the FTCA,
it would be barred by the Feres-Stencel Aero doctrine. How-
ever, because it was a mutual fault collision case in admiralty,
the Weyerhaeuser rule applied. Id.
2.
Approximately a year after Ionian Glow, the Supreme
Court decided Lockheed Aircraft Corp. v. United States, 460
U.S. 190 (1983), which again addressed the issue of whether
a third party may seek indemnity from the government for its
tort liability to a federal employee. In Lockheed, a civilian
employee of the United States Navy died in the crash of an
aircraft operated by the government and manufactured by
Lockheed. The decedent’s survivors received death benefits
under FECA and filed a tort action against Lockheed, which
in turn impleaded the United States, asserting a right to
indemnification under the FTCA. Id. at 192. The Supreme
Court held, just as it had twenty years prior in Weyerhaeuser,
that Lockheed’s indemnity claim against the United States
was not barred by FECA’s exclusive liability provision,
because that provision did not apply to claims against the
United States by non-employees and non-dependants like
Lockheed. Id. at 196.
Importantly, in allowing Lockheed’s indemnification claim,
the Supreme Court rejected the government’s attempt to dis-
tinguish its earlier Weyerhaeuser ruling from the case before
it on the basis that the earlier decision arose in the admiralty
context but Lockheed did not. It reasoned that, "as in
Weyerhaeuser, a third party has been forced to pay tort dam-
ages for . . . a federal employee covered by FECA, and the
third party [sought] to recover a portion of its payment."
Lockheed, 460 U.S. at 196. Although the basis for the suit
against the United States in Lockheed was the FTCA as
opposed to the PVA in Weyerhaeuser, the Court found "that
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difference . . . irrelevant" because (1) the FTCA and the PVA
both permit, "on essentially the same terms," an action to
recover damages against the United States, and (2) Congress
intended FECA’s exclusive liability provision "to apply to
suits under both Acts without distinction." Id. at 198.
While rejecting the relevance of any admiralty/non-
admiralty distinction, the Lockheed Court reaffirmed the con-
tinuing vitality of the Feres-Stencel Aero doctrine in suits
involving military affairs. In response to the dissent’s view
that Stencel Aero involved a similar indemnity claim, the
majority distinguished Stencel Aero as turning "primarily on
the military nature of the action" and raising the question of
"whether the Government’s waiver of sovereign immunity in
the [FTCA] applied to an indemnity action based on an injury
to a serviceman." Id. at 198 n.8 (emphasis added). That issue
was not present in Lockheed, which involved the death of a
civilian employee, as it was "clear that the Government ha[d]
waived its sovereign immunity" in FECA for such non-
military actions. Id.
The Lockheed Court’s emphasis on the "military nature of
the action" reinforces its repeated citation to the "military dis-
cipline" rationale as the primary support for Feres and Stencel
Aero. As outlined in United States v. Shearer, 473 U.S. 52
(1985),
[a]lthough the Court in Feres based its decision on
several grounds . . . "Feres seems best explained by
the ‘peculiar and special relationship of the soldier to
his superior, the effects of the maintenance of such
suits on discipline, and the extreme results that might
obtain if suits under the Tort Claims Act were
allowed for negligent orders given or negligent acts
committed in the course of military duty.’"
Id. at 57 (quoting United States v. Muniz, 374 U.S. 150, 162
(1963)); see also id. at 58 n.4 (describing Feres’s other two
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rationales as "no longer controlling"); Chappell v. Wallace,
462 U.S. 296, 299 (1983). In its most recent decision applying
the Feres-Stencel Aero doctrine, the Court reiterated that the
concern for interference with military discipline lies "at the
heart of the Feres doctrine" and distinguishes suits brought
against the United States by servicemembers injured in the
course of military service from those brought by civilian
employees. Johnson, 481 U.S. at 692 ("We affirm the holding
of Feres that ‘the Government is not liable . . . for injuries to
servicemen where the injuries arise out of or are in the course
of activity incident to service.’") (quoting Feres, 340 U.S. at
146).
3.
In light of the Supreme Court’s Lockheed decision and its
subsequent emphasis on the military discipline rationale sup-
porting the Feres-Stencel Aero doctrine, we agree with the
district court that Ionian Glow does not control our analysis.
We reach that conclusion for several reasons.
First, as the district court notes, this case is factually distin-
guishable from Ionian Glow. Unlike here, the government in
that case stipulated to its degree of fault. Despite Vulcan’s
protestations to the contrary, this distinction matters: that stip-
ulation avoided litigating the United States’ liability in court.
As the district court explained, "there was no need [in Ionian
Glow] for a trial to determine the Navy’s negligence, there
was no need for servicemen to testify against their colleagues
or superiors, and there was no threat of an adverse effect on
military discipline because of such a trial or testimony." J.A.
1111.
By contrast, the litigation of liability here resulted in
numerous Navy witnesses being called into court to testify
"about their own actions and those of fellow servicemen."
J.A. 1110-11. This is exactly what the Feres-Stencel Aero
doctrine was designed to avoid. See Stencel Aero, 431 U.S. at
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673 (explaining that, whether a suit is brought by the service-
man directly or by a third party, "at issue would be the degree
of fault, if any, on the part of the Government’s agents and the
effect upon the serviceman’s safety," and the trial necessarily
would "involve second-guessing military orders, and would
often require members of the Armed Services to testify in
court as to each other’s decisions and actions").
Vulcan counters that the government in Ionian Glow stipu-
lated its percentage of fault only after numerous depositions
were taken of Navy officers and personnel at the discovery
stage. "If requiring military witnesses to testify about Navy
negligence undermines military discipline," Vulcan argues,
"then that factor was surely present in Ionian Glow." Appel-
lant’s Br. at 21.
Vulcan’s argument represents only a partial understanding
of the "military discipline" rationale. The Supreme Court is
concerned not only with servicemembers testifying as to each
other’s decisions and their superiors’ orders, but also with a
civilian court sitting in judgment of military decisions. See
Shearer, 473 U.S. at 58 (explaining that allowing tort suits to
reach the trial stage means that "commanding officers would
have to stand prepared to convince a civilian court of the wis-
dom of a wide range of military and disciplinary decisions,"
including the sorts of "‘complex, subtle, and professional
decisions as to the composition, training, . . . and control of
a military force [that] are essentially professional military
judgments’" (emphasis added) (quoting Chappell, 462 U.S. at
302)); see also Orloff v. Willoughby, 345 U.S. 83, 93-94
(1953) ("The military constitutes a specialized community
governed by a separate discipline from that of the civilian.
Orderly government requires that the judiciary be as scrupu-
lous not to interfere with legitimate Army matters as the
Army must be scrupulous not to intervene in judicial mat-
ters."). While there was indeed discovery in Ionian Glow over
the degree of fault, the government’s stipulation nonetheless
prevented the issue of its liability from being litigated in
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court. The only question before the district court in Ionian
Glow was which damages qualified for apportion-
ment—notably, the court was never called on to judge the
propriety or prudence of military decisions.
As we have noted, we find it significant that Supreme
Court precedent since Ionian Glow has recognized the pri-
macy of military discipline as the rationale underlying Feres-
Stencel Aero. See, e.g., Shearer, 473 U.S. at 57, 58 n.4. We
therefore agree with the district court’s decision not to extend
Ionian Glow beyond its facts.
The Supreme Court has provided additional substantive
guidance as well. Its decision in Lockheed clarifies that
whether an accident occurs in admiralty is not the overriding
factor that determines whether or not sovereign immunity bars
the action. Rather, the focus is on the military nature of cases
to which Feres-Stencel Aero applies.
As a practical matter, focusing on the nature of the action
as opposed to its situs makes particular sense in the context
of a military with several branches. Refusing to apply Feres-
Stencel Aero in admiralty cases alone would have the arbi-
trary consequence of bearing more harshly on the United
States Navy and Marines in comparison to their sister
branches of the armed forces, who primarily engage in non-
naval activities.
For these reasons, we find that the Feres-Stencel Aero doc-
trine applies to the present dispute involving a serviceman
killed incident to service. To the extent that Ionian Glow
relied on the distinctive nature of accidents occurring in the
admiralty context, the Supreme Court’s subsequent decision
in Lockheed instructs that the "military nature" of the tort
action is the more compelling inquiry. Furthermore, unlike in
Ionian Glow, the "military discipline" rationale underlying the
Feres-Stencel Aero doctrine is fully implicated here and coun-
sels in favor of finding that the government has not waived its
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sovereign immunity. We therefore affirm the district court’s
order granting the government’s motion to dismiss Vulcan’s
third-party claim against the United States due to lack of sub-
ject matter jurisdiction.
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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