This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. Plaintiff Peter J. Statile Associates, Inc., a corporation in the business of naval design and consultation, sues defendant Panama Canal Company, the United States agency responsible for maintaining, operating, and conducting business operations with respect to the Panama Canal, for negligence arising out of defendant's decision to deny plaintiff trial transit of the "Interlock" vessel type designed by plaintiff.
Peter J. Statile, president of plaintiff, was granted a patent for his "interlock" invention, which, when designed, would allow increased cargo payload to be transported through the Canal by connecting two vessels, one which is primarily a propulsion vessel and the other which is primarily a cargo-carrying vessel.
Plaintiff alleges that relying upon defendant's promulgations relating to size and draft limitations of vessels, plaintiff proceeded with design work to implement the "Interlock" invention. In 1970, plaintiff sought transit approval from defendant for a vessel type that incorporated the "Interlock" device. On July 16, 1971, defendant gave conditional approval, subject to review of the final plans, to plaintiff for trial transit of the "Interlock" type vessel. Plaintiff claims that defendant approved the final plans, subject to minor further requirements, which plaintiff subsequently met. On December 23, 1973, defendant denied unconditional approval of transit of the proposed design. Plaintiff further claims that it expended considerable effort and money in an attempt to meet defendant's objections. Notwithstanding these efforts, on June 26, 1974, defendant advised plaintiff that the proposed sectionalized design, if built, would not be accepted for transit of the Panama Canal. Defendant based its denial on the following regulation:
The Canal authorities may deny any vessel passage through the Canal when the character or condition of the cargo, hull, or machinery is such as to endanger the structures pertaining to the Canal, or which might render the vessel liable to obstruct the Canal, or whose draft, at any part of the vessel exceeds the maximum allowable draft in the Canal as designated from time to time by the Canal authorities.
35 C.F.R. § 103.2 (1976).
Plaintiff claims that defendant, in denying plaintiff trial transit of the "Interlock" vessel for the reasons it stated, breached the obligation of ordinary care and skill it owed to plaintiff and was therefore negligent. It also asserts that defendant breached its "duty to use due care in obtaining and communicating information upon which plaintiff might reasonably have been expected to have relied in the conduct of its economic and business affairs." Complaint para. 17. Plaintiff alleges that defendant breached such duty by communicating to plaintiff information that was erroneous and did not comport with the size and draft standards established by defendant. Rather than seek review of the agency decision under the Administrative Procedure Act,
plaintiff challenges defendant's decision on the grounds of negligence and seeks $15,000,000.00 in damages as a consequence.
Since the Federal Tort Claims Act and its exceptions are expressly made inapplicable to the Panama Canal Company,
the only sources upon which plaintiff could base its tort claim are the Canal Zone Code and the common law. The Canal Zone Code specifically provides for damages against the Panama Canal Company under certain circumstances. These pertain, for the most part, to damages to vessels that occur during transit of the Canal because of the negligence or fault of employees or officers of the Panama Canal Company. See 2 Canal Zone Code §§ 291-292 (1962) (76A Stat.). There is no mention of damages arising from defendant's decisionmaking. Moreover, section 296 states:
This section does not prohibit actions against the Company's officers or employees for damages for injuries resulting from their acts outside the scope of their employment or not in the line of their duties, or from their acts committed with intent to injure the person or property of another.