In Re Great Lakes Dredge & Dock Co. LLC

REVISED NOVEMBER 4, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 14, 2010
No. 08-30738 Lyle W. Cayce
Clerk
In Re: In the Matter of the Complaint of GREAT LAKES DREDGE & DOCK
COMPANY LLC, As Owner of the dredges California, Manhattan Island,
Padre Island, and Alaska, and as owner pro hac vice of the Dredge
Texas from Exoneration from the Limitation of Liability
-----------------------------------
GREAT LAKES DREDGE & DOCK COMPANY, As owner of the dredges
California, Manhattan Island, Padre Island, and Alaska, and as owner pro hac
vice of the Dredge Texas
Petitioner - Appellee
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED; MARGUERITE ABRAHMS; ET AL
Claimants - Appellants
--------------------------------------
In Re: In the Matter of the Complaint of MIKE HOOKS INC, as owner
of the Dredge Missouri H
Petitioner - Appellee
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED
Claimants - Appellants
---------------------------------------
No. 08-30738
In Re: In the Matter of the Complaint of T L JAMES & COMPANY INC,
as owner of the dredges Tom James and George D Williams II praying
exoneration from or limitation of liability
Petitioner - Appellee
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED
Claimants - Appellants
----------------------------------------
In Re: In the Matter of the Complaint of GULF COAST TRAILING COMPANY,
a Louisiana Partnership, as owner of the dredge Ouachita, praying for
exoneration from or limitation of liability; TLJIC LLC, a partner therein as
owner of the dredge Ouachita praying for exoneration from or limitation of
liability
Petitioners - Appellees
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED
Claimants - Appellants
-----------------------------------------
In Re: In the Matter of the Complaint of MANSON CONSTRUCTION
COMPANY, as owner and operator of the Hopper Dredges Newport
and Bayport, for exoneration from or limitation of liability
Petitioner - Appellee
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED
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No. 08-30738
Claimants - Appellants
-----------------------------------------
In Re: In the Matter of the Complaint of LUHR BROS INC, as
owner of Spud Barge L-1101, Spud Barge L-1103 and M/V Michael A
and as owner Pro Hac Vice of M/V Charlie B praying for exoneration
from or limitation of liability
Petitioner - Appellee
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED
Claimants - Appellants
------------------------------------------
In Re: In the Matter of the Complaint of KING FISHER MARINE
SERVICE L P as owner of the Dredges Leonard M Fisher and Everett
Fisher
Petitioner - Appellee
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED
Claimants - Appellants
------------------------------------------
In Re: In the Matter of the Complaint of PINE BLUFF SAND AND
GRAVEL COMPANY as owner and operator of dredge Marion praying for
exoneration from or limitation of liability
Petitioner - Appellee
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED
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No. 08-30738
Claimants - Appellants
-------------------------------------------------
In Re: In the Matter of the Complaint of WEEKS MARINE INC
as owner of the Dredges B E Lindholm, George D Williams, Weeks
262 and BT 208
Petitioner - Appellee
v.
LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M
THOMAS RICHARDSON; PHILLIP REED
Claimants - Appellants
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:06-CV-8676
Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.
KING, Circuit Judge:
In this consolidated limitation action, Claimants, Hurricane Katrina flood
victims, filed claims against the Limitation Petitioners, private companies that
operated twenty-two dredging vessels along the Mississippi River Gulf Outlet
pursuant to contracts with the United States Army Corps of Engineers.
Claimants suffered damages from the flooding of Orleans and St. Bernard
Parishes when several levee systems failed as a result of the erosion of protective
wetlands allegedly caused by the Limitation Petitioners’ negligent maintenance
dredging operations. The Limitation Petitioners moved to dismiss the claims
under FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) and 12(c). The district court
granted the motion to dismiss, finding that the Limitation Petitioners owed no
duty to the Claimants because the devastation caused by Hurricane Katrina was
4
No. 08-30738
not a foreseeable result of the allegedly negligent conduct of any Limitation
Petitioner. Claimants timely appealed. We affirm the judgment of the district
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Mississippi River Gulf Outlet (“MRGO”) is a 76-mile navigational
channel that connects the Gulf of Mexico with the Industrial Canal in New
Orleans, bisecting the marshy wetlands of St. Bernard Parish and Chandeleur
Sound. It was built between 1958 and 1965 by the United States Army Corps
of Engineers (“Corps of Engineers”) pursuant to congressional authorization.
From 1965 to 1993, the Corps of Engineers performed maintenance dredging to
maintain the navigability of the MRGO. Beginning in 1993, the Corps of
Engineers contracted with numerous private dredging companies, including the
Limitation Petitioners, to assist the Corps of Engineers in maintenance dredging
along the MRGO. From 1999 to 2004, the Corps of Engineers awarded 154
contracts to private dredging companies, many to the Limitation Petitioners, to
dredge the length of the MRGO channel.
Claimants in the present action, who number in the tens of thousands, are
individuals, businesses, and other entities who own property that was damaged
due to flooding after Hurricane Katrina made landfall on August 29, 2005. They
contend that the Limitation Petitioners’ maintenance dredging operations
caused severe damage to the Louisiana wetlands, which provide a natural
barrier against tidal surge from storms and hurricanes. This damage to the
wetlands caused an amplification of the storm surge in the New Orleans region
during Hurricane Katrina, which increased the pressure on the levees and flood
walls along the MRGO, leading to levee breaches and the subsequent flooding
of St. Bernard Parish and Orleans Parish.
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No. 08-30738
Prior to the instant action, two separate class action suits (“Reed” and
“Ackerson”) were filed in the District Court for the Eastern District of Louisiana
by plaintiffs seeking damages from the United States and from private
companies that performed maintenance dredging in the MRGO pursuant to
government contracts. After consolidation of the Reed and Ackerson suits, the
government and the defendant dredgers moved to dismiss.
Before the district court ruled on the defendants’ motions, several of the
dredgers filed petitions in the Eastern District of Louisiana under the Limitation
of Liability Act, 46 U.S.C. § 30511, seeking exoneration from and/or limitation
of liability for all claims for any damages arising out of Hurricane Katrina as a
result of their maintenance dredging activities for the Corps of Engineers.1 The
limitation actions were consolidated into the present case (the “limitation
action”) and transferred to the judge presiding over the Reed and Ackerson suits.
The district court subsequently granted the motions to dismiss the claims
against the government and the defendant dredgers in the Reed and Ackerson
suits.2 See In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2007 WL
763742 (E.D. La. Mar. 9, 2007). The district court dismissed the claims against
the government for lack of subject matter jurisdiction.3 Id. at *2. The district
1
The Limitation of Liability Act allows a shipowner to limit his potential liability for
a maritime accident to the value of his interest in the vessel and its cargo. 46 U.S.C. § 30511.
2
The Limitation of Liability Act provides that “[w]hen an action has been brought
under this section . . ., all claims and proceedings against the owner related to the matter in
question shall cease.” § 30511. Here, however, the district court proceeded to judgment on the
motions to dismiss in the Reed and Ackerson suits after the limitation actions were filed. On
appeal from the district court’s ruling, we concluded that the district court did not commit a
reversible error in entering judgment on the motions to dismiss because the Claimants had
“not identified any substantial prejudice arising out of the district court’s procedural error.”
Ackerson v. Bean Dredging LLC, 589 F.3d 196, 210 (5th Cir. 2009). The parties do not
challenge the order of decisions in this appeal.
3
The district court found that the plaintiffs failed to file a timely administrative claim
prior to filing suit against the government, as required by the Admiralty Extension Act, 46
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No. 08-30738
court dismissed the claims against the dredging companies under the
government contractor immunity doctrines articulated in Yearsley v. W.A. Ross
Construction Co.4 and Boyle v. United Technologies Corp.5 The district court
found that, because the dredging companies were alleged to have performed
their contracts in conformity with the Corps of Engineers’ specifications, and
were not alleged to have performed negligently or absent due care, the dredgers,
as government contractors, were immune from liability for any damages caused
by their dredging operations for the Corps of Engineers. In re Katrina, 2007 WL
763742, at *3–4. We affirmed on appeal, finding that the pleadings “attack
Congress’s policy of creating and maintaining the MRGO, not any separate act
of negligence by the Contractor Defendants,” and therefore the district court did
not err in dismissing the action on the basis that Yearsley immunity applied.
See Ackerson, 589 F.3d at 207.
U.S.C. § 30101(c). This ruling was not appealed.
4
309 U.S. 18 (1940). In Yearsley, the Supreme Court held that a government contractor
was not liable for damage caused by the construction of dikes in the Missouri River, where the
construction project was validly authorized and directed by the federal government. The court
held that if “th[e] authority to carry out the project was validly conferred, that is, if what was
done was within the constitutional power of Congress, there is no liability on the part of the
contractor for executing its will.” Id. at 20–21. To hold the contractor liable, “the ground of
liability [must be] found to be either that he exceeded his authority or that it was not validly
conferred.” Id. at 21.
5
487 U.S. 500 (1988). Under Boyle, liability cannot be imposed upon government
contractors for design defects in military equipment when “(1) the United States approved
reasonably precise specifications; (2) the equipment conformed to those specifications; and (3)
the supplier warned the United States about the dangers in the use of the equipment that were
known to the supplier but not to the United States.” Id. at 512. Citing Boyle, the district court
stated that “[c]ontractors cannot be held liable for performing contracts in conformity with the
Government’s specifications, providing the contractors carried out such contracts with due care
and absent negligence.” In re Katrina, 2007 WL 763742, at *4. The district court noted that
“Plaintiffs’ counsel in the briefs and at oral argument could not point out any allegation in the
lengthy complaint which alleged that the Dredging Defendants did not carry out the contracts
at issue with due care.” Id. We did not address this portion of the district court’s ruling on
appeal.
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No. 08-30738
Following dismissal of the class action suits, Claimants filed claims
against the dredgers in the limitation action. Many of the claims asserted in the
limitation action were substantially similar to those brought against the
dredgers in the Reed and Ackerson suits. But the Claimants also added new
allegations of negligence to defeat the dredgers’ government contractor
immunity defenses, as well as the dredgers’ entitlement to exoneration from or
limitation of liability under the Limitation of Liability Act. Specifically, they
alleged that the Limitation Petitioners “failed to perform their dredging work
with due care” and that they “performed their dredging work in the MRGO
negligently.” Claimants also alleged that the Limitation Petitioners violated
requirements imposed by their contracts with the Corps of Engineers and by
various federal and state statutes and regulations:
28. Limitation Petitioners and the Vessels failed to follow
requirements of 33 CFR Parts 335–38, particularly 33 CFR
336.1(c)(4) and 33 CFR 320.4(b) and Executive Order No.
11990 made applicable thereby.
29. Limitation Petitioners and the Vessels deviated from and/or
failed to execute their dredging activities in the manner
required by the Corps of Engineers, or by reasonably precise
specifications issued by the Corps of Engineers (if they were
issued) and/or by Nationwide Permits, specific permits, or
general authorizations for dredging issued by or obtained by
the Corps of Engineers pursuant to 33 CFR 337.5 and 338.2,
and all other regulations that Limitation Petitioners and the
Vessels were required to follow.
30. Limitation Petitioners and the Vessels failed to follow
Louisiana State dredging requirements (made applicable by
33 CFR 337.2), including those contained in Chapter 7,
Sections 701 and 707 of the Louisiana Administrative Code
related to dredging activities.6
6
In the Reed and Ackerson cases, plaintiffs moved to amend their complaints to assert
nearly identical allegations as those asserted in Claims ¶¶ 28, 29, and 30 in the instant action.
We affirmed the district court’s denial of leave to amend to add these allegations, holding that
they were too conclusory to state a claim for relief. Ackerson, 589 F.3d at 208–09.
8
No. 08-30738
31. Limitation Petitioners and the Vessels have performed
“advance maintenance” and “over-depth” dredging of the
MRGO, going beyond its authorized project depth.
Limitation Petitioners and the Vessels have also performed
“over-width” dredging, also for advance maintenance
purposes. Limitation Petitioners and the Vessels also
overcut the slope of the channel, based on the potential for
undisturbed material to slough downward to the channel,
and for other reasons, changing the designed slope of the
channel’s banks, thereby enlarging the design width of the
channel, causing wetlands along the banks of the channel
to erode, and causing the width of the channel to increase.
These activities were conducted without authorization,
approval or control of the Corps of Engineers, and were
outside of any reasonably detailed specifications provided
by the Corps of Engineers for the work. These activities by
Limitation Petitioners and the Vessels constitute
negligence and violate regulations enacted to control
dredging activities.
Thus, in contrast to the Reed and Ackerson cases, the Claimants alleged
that their injuries resulted from the erosion to the wetlands caused by the
Limitation Petitioners’ negligent dredging, performed in breach of the standards
set out in their Corps of Engineers contracts and various rules and regulations
alleged to apply to their operations, rather than from the very existence of the
MRGO or by any non-negligent dredging performed by the Corps of Engineers
or the Limitation Petitioners in conformity with their government contracts.
The Limitation Petitioners moved to dismiss under Rule 12(b)(1) and Rule
12(c). The district court granted the motion, holding as a matter of law that the
Limitation Petitioners did not owe a duty to the Claimants, and were therefore
not liable, because the Claimants’ hurricane damages were not the legally
foreseeable consequence of the Limitation Petitioners’ allegedly negligent
dredging activities. Relying on a standard that we articulated in Consolidated
Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65 (5th Cir. 1987), the district
9
No. 08-30738
court held that the harm was too attenuated from the alleged cause to be legally
foreseeable, noting:
It is simply inconceivable to this Court why discrete acts of dredging
after 1993 by the myriad dredgers would be sufficient for the
specific dredger to foresee the absolutely devastating and
cataclysmic damages that occurred to St. Bernard and Orleans
Parishes. Simply put, the Limitation Dredgers could not have
anticipated that its alleged negligent dredging would be a cause
thereof.
Furthermore, the district court held that the pleadings failed sufficiently to
allege a causal connection between any of the Limitation Petitioners’ alleged
negligent acts and any of the Claimants’ damages. “[I]t seems inexorable that
in order to find liability, there would have to be some group liability finding in
reference to causation. Claimants have cited no case in the maritime law
context where a group liability theory has been recognized or applied.” The
district court concluded, “[t]o recover on this theory would obviate proof of
individual causation and [the theory] is therefore fatally flawed.”7 Claimants
timely appealed.
II. DISCUSSION
A. Rule 12(b)(1)
The Claimants argue on appeal that the district court erred in dismissing
their claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction,
asserting that the district court had jurisdiction over their claims under 28
7
The Limitation Petitioners also argued that the Claimants’ allegations in the instant
action are practically identical to those that the district court rejected in the Reed and Ackerson
cases, and should therefore be dismissed on the same basis—that the Claimants did not allege
that the dredgers deviated from their contracts to overcome their immunity as government
contractors under Yearsley. They also argued that the new allegations of negligence were too
conclusory to compel a different result. The district court found that the pleadings sufficiently
alleged that the Limitation Petitioners were not entitled to the government contractor
immunity shield to overcome dismissal on this basis. The parties do not challenge this
determination on appeal.
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No. 08-30738
U.S.C. § 1333.8 Alternatively, they argue that, had the district court lacked
jurisdiction, it erred in reaching the merits of their claims and dismissing them
with prejudice under Rule 12(c) for failure to state a claim.
The Claimants are correct that when, as here, “a Rule 12(b)(1) motion is
filed in conjunction with other Rule 12 motions, the court should consider the
Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits[
. . . ] to prevent[ ] a court without jurisdiction from prematurely dismissing a
case with prejudice.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001). Furthermore, they correctly note that if the district court had held that
it lacked subject matter jurisdiction, it should have entered dismissal without
prejudice to allow the Claimants to retry their claims in a court with jurisdiction
to hear them. See id. (“The court’s dismissal of a plaintiff’s case because the
plaintiff lacks subject matter jurisdiction is not a determination of the merits
and does not prevent the plaintiff from pursuing a claim in a court that does
have proper jurisdiction.”).
However, it is clear from the substance of the district court’s opinion that
the district court did not dismiss for lack of subject matter jurisdiction.
Although the district court referenced both Rules 12(b)(1) and 12(c) when
granting the motion to dismiss, the entirety of the district court’s analysis
addressed the merits of the Claimants’ pleadings. The district court stated no
basis for dismissal under Rule 12(b)(1), and we agree with the Claimants that
none exists. Accordingly, because the district court did not hold that it lacked
subject matter jurisdiction, and as there is no basis for such a holding, the
district court did not err in entering dismissal with prejudice on the merits
8
“The district courts shall have original jurisdiction, exclusive of the courts of the
States, of any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all
other remedies to which they are otherwise entitled.” § 1333(1).
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No. 08-30738
under Rule 12(c). We therefore conclude that the district court’s reference to
Rule 12(b)(1) does not provide a basis for reversal.9
B. Rule 12(c)
We review de novo a district court’s ruling on a Rule 12(c) motion for
judgment on the pleadings. Great Plains Trust Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (citing Hughes v. Tobacco Inst.,
Inc., 278 F.3d 417, 420 (5th Cir. 2001)). A motion under Rule 12(c) for failure to
state a claim is subject to the same standards as a motion to dismiss under Rule
12(b)(6). Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Great Plains
Trust Co., 313 F.3d at 313 n.8.
To avoid dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 554, 570 (2007)). To be plausible, the complaint’s “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. In deciding whether the complaint states a valid claim for
relief, we accept all well-pleaded facts as true and construe the complaint in the
light most favorable to the plaintiff. MySpace, 528 F.3d at 418 (citing Hughes,
278 F.3d at 420). We do not accept as true “conclusory allegations, unwarranted
factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776,
780 (5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.
2005)); see also Iqbal, 129 S.Ct. at 1940 (“While legal conclusions can provide the
complaint’s framework, they must be supported by factual allegations.”).
1. Duty and Foreseeability
9
On appeal, the Limitation Petitioners withdraw this basis for dismissal, agreeing with
the Claimants that the district court had jurisdiction under 18 U.S.C. § 1333.
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No. 08-30738
The district court held that the Limitation Petitioners owed no duty to the
Claimants, and therefore were not liable, because the individual dredgers could
not have foreseen that discrete acts of negligent dredging could have resulted in
the “absolutely devastating and cataclysmic damages that occurred to St.
Bernard and Orleans Parishes.”
On appeal, Claimants contend that their damages were foreseeable
because it is well known, as a matter of general knowledge, that the wetlands
provide storm surge mitigation; that the levees protecting cities and towns in the
coastal areas were designed with the assumption that the buffering action
provided by the wetlands would remain intact; and that dredging activities cause
damage to the wetlands. Accordingly, they contend, the district court erred in
holding that the Limitation Petitioners did not and could not have foreseen that
flooding could result from the damage to the wetlands caused by their
maintenance dredging operations.
Additionally, the Claimants contend that the district court erroneously
disregarded the Securities and Exchange Commission (“SEC”) 10-K filings of
Great Lakes Dredge & Dock Co. (“Great Lakes”), one of the Limitation
Petitioners, that the Claimants submitted to the district court in post-hearing
briefing. The Claimants argue that in portions of these filings, Great Lakes
acknowledges that its operations carry environmental risks, including flooding;
that its operations are subject to various environmental laws and regulations
related to the prevention of environmental damage, including damage to the
wetlands; and that erosion to Louisiana wetlands has increased the region’s
exposure to hurricanes. The Claimants contend that these statements contradict
the Limitation Petitioners’ assertion that the flooding that caused the Claimants’
injuries was not foreseeable. The district court concluded that these documents
were “rather standard SEC filings,” and that Great Lakes’ acknowledgment that
its operating risks include flooding “does not indicate that Great Lakes could
13
No. 08-30738
foresee the catastrophic damages alleged here under the test set forth in
Consolidated Aluminum.”
The parties agree that maritime law governs the Claimants’ claims, which
relate to the Limitation Petitioners’ conduct of operations on a navigable
waterway. See Creppel v. Shell Oil Co., 738 F.2d 699, 701 (5th Cir. 1984) (torts
occurring in navigable waters are governed by maritime law). “[N]egligence is
an actionable wrong under general maritime law,” and the elements of that tort
are “essentially the same as land-based negligence under the common law.”
Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005). To state a
claim for relief under maritime law, the “plaintiff must ‘demonstrate that there
was a duty owed by the defendant to the plaintiff, breach of that duty, injury
sustained by [the] plaintiff, and a causal connection between the defendant’s
conduct and the plaintiff’s injury.’” Canal Barge Co. v. Torco Oil Co., 220 F.3d
370, 376 (5th Cir. 2000) (quoting In re Cooper/T. Smith, 929 F.2d 1073, 1077
(5th Cir. 1991)) (alteration in original).
“Determination of the tortfeasor’s duty is a question of law and thus a
function of the court that we review de novo.” Miss. Dep’t of Transp. v. Signal
Int’l LLC (In re Signal Int’l LLC), 579 F.3d 478, 490 (5th Cir. 2009). Under
maritime law, a plaintiff is owed a duty of ordinary care under the
circumstances.10 Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980).
10
Claimants argue at length on appeal that we can derive a duty of care in this case
from provisions in the Limitation Petitioners’ contracts with the Corps of Engineers and in
various allegedly applicable federal and state statutes, citing Galentine v. Estate of Stekervetz,
273 F. Supp. 2d 538, 544 (D.Del. 2003) (“in admiralty, the duty of care may be derived from:
1) duly enacted laws, regulations, and rules; 2) custom; or 3) the dictates of reasonableness and
prudence.”). They contend that the Limitation Petitioners’ violations of these provisions
constituted a breach of duty under maritime law. Because we agree with the district court
that the damages alleged to result from the Limitation Petitioners’ actions were not reasonably
foreseeable, we need not determine whether we can look to these statutory and contractual
provisions to establish whether the Limitation Petitioners’ conduct amounted to a breach of
a duty of care. See Daigle, 616 F.2d at 827 (a defendant’s failure to fulfill a duty of care under
maritime law “does not breach that duty, . . . unless the resultant harm is reasonably
14
No. 08-30738
The determination of the existence and scope of a duty “involves a number of
factors, including most notably the foreseeability of the harm suffered by the
complaining party.” Consol. Aluminum, 833 F.2d at 67. Duty “may be owed only
with respect to the interest that is foreseeably jeopardized by the negligent
conduct.” Id. Thus, if the injuries suffered allegedly as a result of the Limitation
Petitioners’ negligent dredging were not foreseeable, the Limitation Petitioners
owed no duty to the Claimants and are not liable as a matter of law.
In the context of maritime torts, we have considered harm to be a
foreseeable consequence of an act or omission
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 the act or omission, considering the interplay of natural
forces and likely human intervention.
Id. at 68. To show that the individual Limitation Petitioners are liable in the
instant case, the Claimants would have to show that each Limitation Petitioner
reasonably should have foreseen that the sequence of events leading to their
damages—the amplification of the storm surge during Hurricane Katrina, the
failure of the levee systems, and the subsequent flooding of Orleans and St.
Bernard Parishes—would be a probable result of its negligent acts and the
marginal erosion to the wetlands caused thereby. See Consol. Aluminum, 833
F.2d at 68 (harm is not foreseeable unless it “might have been anticipated by a
reasonably thoughtful person, as a probable result of the act or omission”)
(emphasis added); Republic of France v. United States, 290 F.2d 395, 401 (5th
Cir. 1961) (a defendant must have “‘knowledge of a danger, not merely possible,
but probable’”) (quoting Dalehite v. United States, 346 U.S. 15, 42 (1953)).
We have on several occasions examined foreseeability of harm in the
context of maritime torts. In Consolidated Aluminum Corp. v. C.F. Bean Corp.,
foreseeable”).
15
No. 08-30738
the plaintiff sued to recover for physical damage caused to its manufacturing
facilities and attendant economic loss due to the disruption of its supply of
natural gas. 833 F.2d at 66. The disruption was caused when the defendant’s
dredge negligently ruptured a natural gas pipeline, causing the natural gas
provider to close the nearest valves to stem the flow of escaping gas. Id. We
refused to impose liability because we were “not persuaded that [the defendant]
could have anticipated that its failure to follow safe dredging practices would
likely result in physical damage to the equipment and work-in-progress at [the
plaintiff’s] aluminum reduction plant several miles away.” Id. at 68. We
explained:
The harm was not of a general sort expected to follow from the
failure to dredge carefully in proximity to a gas pipeline. Injury to
property and persons from the escaping gas, or from a fire which
might have ensued, would be examples of consequences that would
be foreseeable. . . . But the damage arising from the loss of natural
gas supply, in turn causing the shut down of electric turbines, in
turn causing a loss of electric power vital to the aluminum reduction
process, with the ultimate result being substantial damage to
equipment and product-in-process, goes beyond the pale of general
harm which reasonably might have been anticipated by negligent
dredgers.
Id. We therefore concluded as a matter of law that no duty was owed with
respect to the damages suffered.
We applied the standard articulated in Consolidated Aluminum in Lloyd’s
Leasing Ltd. v. Conoco, 868 F.2d 1447 (5th Cir. 1989). There, the plaintiffs,
owners of property seventy miles from the site of an oil spill, sued for damages
resulting after the oil washed ashore and was tracked onto their properties from
the beach by vacationers. Id. at 1448. We concluded that the harm suffered by
the plaintiffs was not foreseeable because most of the area in which the oil might
plausibly have washed ashore was undeveloped. Id. at 1449. We held that
although “the [defendant] might reasonably anticipate that the oil would
16
No. 08-30738
probably wash ashore somewhere, it had no reason to have anticipated that the
oil would probably wash ashore in a heavily populated area and then be tracked
into businesses and homes.” Id.In each case, this court found the causal connection between the alleged
negligence and the resulting harm to be too attenuated to be foreseeable as a
matter of law. To be foreseeable, the harm alleged must bear some proximate
relationship with the negligent conduct such that it can reasonably be said to be
within the “scope of the risk” created by that conduct. Consol. Aluminum, 833
F.2d at 67. For instance, in In re Signal International LLC, where negligently-
moored barges broke free and allided with a bridge during Hurricane Katrina,
we found that the bridge
was within the general class of fixed structures in the low-lying
areas near the Pascagoula River against which [the defendant
vessels] could foreseeably allide when propelled by the anticipated
storm surge, and the general class of persons for which the harm of
allision was foreseeable were those possessing fixed or other
property within the path of the anticipated surge.
579 F.3d at 492. We distinguished that case from Consolidated Aluminum and
Lloyd’s Leasing, noting, “the harms in those cases did not arise from the risk of
danger created by negligence and instead involved [an] improbable interplay of
natural and human forces . . . and the party at fault was able to identify events
that would not have been foreseen by a reasonable person.” Id. at 495 n.19.
We agree with the district court that the harm suffered by the Claimants
was not a foreseeable consequence of the Limitation Petitioners’ allegedly
negligent dredging operations. Whereas in Signal, the negligent barge-owner
anticipated Hurricane Katrina’s approach and failed to secure the barges to
withstand the expected storm surge, the Limitation Petitioners in this case had
no knowledge of an immediate and pending natural disaster that would affect
how they conducted their dredging operations. Furthermore, it cannot be said
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No. 08-30738
that any dredger could have foreseen that performing its dredging activities
negligently—as opposed to in conformity with the Corps of Engineers’
specifications— would probably result in the series of events culminating in the
catastrophic damages that occurred during Hurricane Katrina. No reasonable
dredger could have anticipated that its negligence would make the difference
between the levee systems holding or failing in the event of a hurricane. The
damages alleged here are “beyond the pale of general harm which reasonably
might have been anticipated by negligent dredgers.” Consol. Aluminum, 833
F.2d at 68.
This is not to say that it could never be foreseen that dredging could create
conditions that would result in flooding after a hurricane. Rather, we find that
it was not foreseeable that the marginal erosion caused by any act of negligence
by a Limitation Petitioner would substantially affect the impact of the hurricane
such that the failure of the levee systems and subsequent flooding would be the
probable result.11 The causal sequence alleged in the present case is far more
attenuated than the causal sequences described in Consolidated Aluminum and
Lloyd’s Leasing, in both of which we held as a matter of law that the harm
alleged was not foreseeable.12
11
The Claimants allege that the Limitation Petitioners dredged negligently, but do not
allege whether all or only part of their activities were negligent. Even if all of the Limitation
Petitioners’ dredging activities were performed negligently, however, the Claimants allege that
the Limitation Petitioners dredged at various times over thirteen years at various points along
the seventy-six mile course of the MRGO. Simply put, the Claimants’ injuries are too remote
from these alleged acts of negligence to have “arise[n] from the risk of danger created by [the]
negligence.” Signal Int’l, 579 F.3d at 495 n.19.
12
As the district court noted, this case bears some similarities to Barasich v. Columbia
Gulf Transmission Co., 467 F. Supp. 2d 676 (E.D. La. 2006), in which the plaintiffs alleged
that damage to wetlands caused by the exploration and extraction efforts of numerous oil and
gas companies contributed significantly to the destructive impact of Hurricane Katrina.
Applying Louisiana tort law but citing Consolidated Aluminum, the court concluded as a
matter of law that the defendants did not owe a duty to the plaintiffs because the connection
between the harm alleged—extensive flooding after a significant hurricane—and the
defendants’ behavior—allegedly negligent acts in connection with oil exploration and
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No. 08-30738
2. Causation and Group Liability
“Under the general maritime law, a party’s negligence is actionable only
if it is the ‘legal cause’ of the plaintiff’s injuries,” which is “something more than
‘but for’ causation [—]the negligence must be a substantial factor” in causing the
injuries. Donaghey v. Ocean Drilling & Explor. Co., 974 F.2d 646, 649 (5th Cir.
1992).
The district court noted that, according to the pleadings, most of the
erosion of the wetlands and the attendant weakening of the natural buffer
protecting New Orleans from storm surge and flooding is attributable to the very
existence of the MRGO, and to maintenance dredging by the Corps of Engineers
for decades prior to any actions by the Limitation Petitioners. The Corps of
Engineers dredged the MRGO exclusively from 1965 to 1993, after which it
awarded contracts to numerous private dredgers, including the Limitation
Petitioners. The Claimants themselves assert in their pleadings that by the
1990s, when the Limitation Petitioners first began to dredge the MRGO, “the
project was [already] widely characterized as an environmental disaster,
although adverse environmental impacts from the MRGO were evident as early
as the late 1960s.” Yet the Claimants contend that their damages resulted—not
from the existence of the MRGO or from any non-negligent dredging performed
by the Corps of Engineers or the Limitation Petitioners—but from the additional
marginal erosion caused when the Limitation Petitioners deviated from the
standards set out in the Corps of Engineers contracts and in various rules and
regulations alleged to apply to their dredging operations.
Accordingly, the district court found that the Claimants could not
demonstrate that any individual dredger’s actions were a substantial cause of
any of the Claimants’ damages. The district court found that “the pleadings
production that resulted in harm to wetlands—was too attenuated. Id. at 692.
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No. 08-30738
demonstrate that it would be virtually impossible that the act of one dredger
sometime after 1993 was a cause of the damages. At the very best, plaintiffs
would have to show that the cumulative action of all of the dredgers was a
cause.” The court concluded that the Claimants must therefore rely on a theory
of group liability which we have never recognized or applied under maritime law.
Claimants clarify on appeal that they are not urging a group liability
theory, alleging rather that “each Limitation Petitioner caused its own separate
damage, while dredging different sections of the MRGO, under separate
contracts, in different years,” and that “[e]ach may or may not have caused
damage and each is liable only for the damage it caused.” However, the
Claimants’ pleadings lack sufficient factual allegations to state a claim against
any individual dredger. Twombly, 550 U.S. at 555. As the district court stated,
“the Claimants’ pleadings do not differentiate among the dredgers, do not state
where the dredging activities took place, [and] do not state whether all or part
of the dredging activities conducted by the [Limitation Petitioners] were
negligent.” Simply put, the Claimants’ pleadings do not assert a causal relation
between any of the Limitation Petitioners’ dredging operations and any of the
Claimants’ damages, much less that any negligent act was a substantial cause
thereof.
III. CONCLUSION
For the above reasons, we AFFIRM the judgment of the district court.
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