Foreign Vessels

Ecuadorians on a fishing boat were detected in international waters near the Galapagos Islands by the U.S. Coast Guard, which, suspecting involvement with drug smuggling, stopped and boarded the vessel. Tests performed on board yielded suspicious but inconclusive results and, with the consent of the Ecuadorian government, the Coast Guard towed the boat to Ecuador. Further tests conducted by the Ecuadorian government uncovered no contraband, and no charges were filed against the crew. Crew members then sued the U.S. in district court for over $5 million, alleging that U.S. agents unlawfully and negligently stopped, searched, arrested, detained and imprisoned the crew, seized the boat, and destroyed the cargo and fish owned by them, and that this resulted in unlawful imprisonment, humiliation, pain and suffering, destruction of personal property, loss of their catch and the use of the vessel, and public ridicule. The district court held the U.S. had not waived its sovereign immunity over the action and, accordingly, dismissed the case. Crew members appealed to the U.S. Court of Appeals for the Ninth Circuit.

As in the lower court, the issue on appeal is whether the U.S. waived sovereign immunity. As the Court notes, “It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. A waiver of sovereign immunity cannot be implied but must be unequivocally expressed. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citation, alterations, and internal quotation marks omitted).” [1195]

Of the several sources of an alleged waiver of sovereign immunity offered by Plaintiff-Appellants, only three—the Public Vessels Act (PVA), 46 U.S.C. Sec. 31101; the Suits in Admiralty Act, 46 U.S.C. Sec. 30901; and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq.—articulated an explicit waiver of sovereign immunity. The Court notes that “[b]ecause each of those three Acts provides a separate, explicit waiver of sovereign immunity, one might expect that any of the three waivers would suffice.” [1196]

However, for historical reasons, the Court explains, “if a claim falls within the scope of the PVA, the plaintiff must meet the reciprocity requirement of the PVA, regardless of the type of claim the plaintiff asserts.” [1197] Thus, the Court focuses its analysis on...