Alexis Viera Borges v. United States

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13661
Non-Argument Calendar
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D.C. Docket No. 4:13-cv-10157-JEM
ALEXIS VIERA BORGES,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 13, 2016)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Alexis Borges appeals the judgment against his complaint that the United
States Coast Guard was negligent in waiting two days to evacuate him for medical
treatment after it intercepted a boat on which he and other passengers were
attempting to enter the United States illegally from Cuba. Borges argues that the
district court applied an improper standard of care in determining whether the
Coast Guard was negligent and disregarded testimony from his expert witnesses.
The United States argues that the district court should have dismissed Borges’s
complaint for lack of subject matter jurisdiction. Because the district court had
jurisdiction to adjudicate Borges’s complaint, and the evidence supports its finding
that the Coast Guard was not negligent, we affirm.
The United States argues that Borges failed to satisfy a precondition for a
waiver of sovereign immunity to maintain his action under the Public Vessels Act,
but the district court correctly determined that the Public Vessels Act did not
govern Borges’s complaint. Under the Public Vessels Act, “[a] national of a
foreign country may not maintain a civil action [against the United States in
personam in admiralty for damages caused directly by a public vessel] unless the
government of that [foreign] country, in similar circumstances, allows nationals of
the United States to sue in its courts.” 46 U.S.C. §§ 31102(a)(1), 31111. The
Supreme Court has interpreted “the phase ‘caused by a public vessel’” as including
when “the vessel was the physical instrument that caused the physical damage”
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and when “the vessel . . . caus[ed] the harm although the actual cause is the
negligence of the personnel in the operation of the ship” because it would be
illogical to “allow[] recovery for collision and refus[e] recovery for damages
caused by other movements of the offending vessel.” Canadian Aviator v. United
States, 324 U.S. 215, 224, 225 (1945). Borges did not seek damages for an injury
caused by the Coast Guard vessel or by its negligent operation. Borges alleged that
he developed a chronic bone infection and “numerous complications” because
medical personnel onboard the vessel treated his broken and lacerated ankle
instead of evacuating him to a hospital. As we held in Uralde v. United States, 614
F.3d 1282 (11th Cir. 2010), a complaint “based [on] the Coast Guard’s decisions
regarding whether and how to provide proper care and timely access to medical
treatment of a passenger on a private vessel interdicted at sea” is “distinct from the
operation of a public vessel” so “neither the [Public Vessels Act] nor its reciprocity
requirement applies.” Id. at 1288.
Borges’s complaint fell within the scope of the waiver of sovereign
immunity in the Suits in Admiralty Act, which “covers all remaining admiralty
claims, including those simply involving public vessels,” id. at 1286 (internal
quotation marks and citation omitted). See 46 U.S.C. § 30903(a). Because Borges
complained that “Coast Guard personnel [were] negligent in performing functions
other than those ‘in the operation of’ public vessels, . . . [his complaint] f[e]ll under
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the [Suits in Admiralty Act], rather than the [Public Vessels Act].” See Uralde, 614
F.3d 1288. The district court had jurisdiction to adjudicate Borges’s complaint.
Borges argues that the district court erred by evaluating the medical
personnel under the standard of care applied to good samaritans, but we need not
address that issue. We can readily affirm based on the finding of the district court
that there was “no evidence . . . of negligence on the part of the Coast Guard or its
personnel.”
Federal law provides that “[i]n order to render aid to distressed persons . . .
the Coast Guard may perform any and all acts necessary to . . . aid persons,” 14
U.S.C. § 88(a)(1), when and where “Coast Guard facilities and personnel are
available and can be effectively utilized,” id. § 88(b)(1). Under maritime law, “a
shipowner owes the duty of exercising reasonable care to[] those lawfully aboard
the vessel who are not members of the crew.” Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 630 (1959). To prove negligence, Borges had to
establish that the Coast Guard owed him a duty that it breached and that was the
proximate cause of his injury and that he “suffered actual harm.” Franza v. Royal
Caribbean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir. 2014).
We cannot say the district court clearly erred in finding that the medical
personnel “provided reasonable medical treatment” and that there was “no
evidence . . . of negligence.” See Krys v. Lufthansa German Airlines, 119 F.3d
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1515, 1525 (11th Cir. 1997). Borges arrived on the Coast Guard vessel with a
laceration on his right ankle that exposed the bone, after which medical personnel,
as the district court stated succinctly, “cleansed [Borges’s] wound, closed the
wound to prevent . . . interference from further debris, provided [him] with
antibiotics, continuously monitored [his] condition, and quickly evacuated [him]”
when he exhibited “an elevated blood pressure, temperature, and heart rate.” At the
hospital, Borges underwent an x-ray and was discharged two hours later with
instructions to treat the wound and to visit an orthopedic surgeon.
Borges also argues that the district court erroneously disregarded testimony
from his expert witnesses, but we disagree. In its order, the district court recounted
that Borges’s “expert witness Dr. Jan Pieter Hommen stated [in her deposition] that
administering Rocephin [to guard against possible infection] was appropriate” and
that “expert witness nurse Michele Myers-Glower [testified] that administering the
antibiotic Rocephin within three hours of [Borges] coming aboard the [Coast
Guard vessel] complied with her understanding of the applicable nursing standard
of care.” Myers-Glower testified that it fell below the standard of care not to
evacuate Borges within six hours of assessing his wound, but she stated on cross-
examination that using saline to irrigate Borges’s wound was proper; there was no
evidence that the Coast Guard used any non-sterile equipment on Borges; the
medical personnel closed Borges’s wound with staples to prevent further injury in
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the event he was transported by boat; and physicians at the hospital did not detect
that Borges’s ankle was infected. Although a third expert, Dr. H. Barry Baker, an
infectious disease specialist, testified that the decision not to immediately transfer
Borges fell below the standard of care and that the delay was a primary factor in
Borges’s complications, the district court apparently discounted the doctor’s
testimony because he “admitted that he could not speak to the applicable standard
of care aboard” a Coast Guard vessel. Overall, the testimony of Borges’s expert
witnesses supported the finding that the treatment administered by the medical
personnel was not the proximate cause of Borges’s infection. See Franza, 772 F.3d
at 1253.
We AFFIRM the judgment in favor of the United States.
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