United States District Court, S.D. Texas, Brownsville Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
Rolando Olvera, United States District Judge
the Court is the "Magistrate Judge's Report and
Recommendation" ("R&R") (Docket No. 221)
in the above-captioned case. This case arises from the death
of Patricia Guadalupe Garcia Cervantes
("Cervantes"). See Docket No. 22.
Francisco Ortega Garcia ("Plaintiff) filed this suit in
several capacities: individually, as Cervantes's
surviving spouse, successor to Cervantes's estate, and as
next friend of V.S.O.G., Cervantes's minor child
(collectively "Plaintiffs"). The R&R
recommended the Court dismiss all of Plaintiffs'
claims. See Docket No. 221. Plaintiffs
timely objected to the R&R. See Docket No. 228.
The United States of America ("Government");
Mercury Marine, a division of Brunswick Corporation
("Mercury Marine"); and Safe Boats International
LLC ("Safe Boats") (collectively
"Defendants") timely responded to Plaintiffs'
objections. See Docket Nos. 231, 237, and 238.
BRIEF FACTUAL BACKGROUND
evening of April 23, 2015, Cervantes and Galindo
Ruiz-Hernandez ("Ruiz-Hernandez") tried to swim
across the Brownsville Ship Channel ("Channel"), to
enter the United States from Mexico. That night, the United
States Coast Guard ("USCG") embarked on a
"United States Coast Guard Law Enforcement Vessel"
("Vessel") manufactured by Safe Boats and powered
by three engines manufactured by Mercury Marine.
evening's weather conditions allowed for six-mile
visibility. Thus, after scanning the water ahead of the
Vessel and finding no ships or objects in the water, the USCG
accelerated the Vessel to "come up to
plane". The Vessel then struck Cervantes as she
tried to cross the Channel.Cervantes died following the
federal court acts as a federal "common law court"
when exercising admiralty jurisdiction. See Exxon
Shipping Co. v. Baker, 554 U.S. 471, 507 (2008).
"In formulating federal maritime law, the federal courts
may examine, among other sources, judicial opinions,
legislation, treatises, and scholarly writings." Air
and Liquid Systems Corp. v. DeVries, 139 S.Ct. 986, 992
Plaintiffs' Negligence-Based Claims
Claims Against the Government
maritime negligence claim requires: (1) the defendant owed a
duty to the plaintiff, (2) the defendant breached the duty,
(3) the plaintiff sustained damages, and (4) the
defendant's wrongful conduct caused the plaintiffs
damages. Withhart v. Otto Candies, LLC, 431 F.3d
840, 842 (5th Cir. 2005). Courts determine the threshold
element of duty predominately by the "foreseeability of
the harm suffered by the complaining party." Consol.
Aluminum Corp. v. CF. Bean Corp., 833 F.2d 65, 67 (5th
Cir. 1987). A harm is foreseeable if "harm of a general
sort to persons of a general class might have been
anticipated by a reasonably thoughtful person, as a probable
result" of a defendant's conduct. Id. at
failed to identify what duty the Government owed Cervantes-an
undocumented alien ("UDA") swimming in the Channel
at night trying to avoid detection. Although aware of the
possibility that a UDA might use the Channel as a crossing
point, before Cervantes, no USCG member interviewed by
Plaintiffs had ever encountered a UDA swimming across the
Channel at night. See Docket No. 112 Ex. 2 at 14.
The Government did not owe Cervantes a duty unless the USCG
had actual knowledge about the probability of hitting
Cervantes as she swam across the Channel. See Republic of
France v. United States, 290 F.2d 395, 401 (5th Cir.
Ruiz-Hernandez was the smuggler trying to transport Cervantes
across the Channel. Plaintiffs incorrectly rely on language
in his case before the Fifth Circuit which states that
"it was reasonably foreseeable that a person swimming
across a high-traffic ship channel in the dark of night would
be struck by a passing ship" to allege that the
Government owed a duty to Cervantes. United States v.
Ruiz-Hernandez, 890 F.3d 202, 211 (5th Cir. 2019);
see also Docket No. 237 at 4. However,
Ruiz-Hernandez did not contemplate foreseeability
from the perspective of a boat navigating through a
"high-traffic ship channel in the dark of night."
See Id. The Fifth Circuit's decision and above
stated language was limited in scope to the foreseeability
issue from the perspective of a human smuggler directing UDAs
to swim across the "high traffic" Channel. See
Id. Thus, Ruiz-Hernandez does not apply here.
these reasons, Plaintiffs failed to establish the Government
owed Cervantes a duty and failed to allege prima facie claim
of negligence. Thus, Plaintiffs' ...