State of La. ex rel. Guste v. M/V Testbank

• Decision Date: 02 April 1984
• Docket Number: No. 82-3059,82-3059
• Citation: 728 F.2d 748
• Parties: , 1984 A.M.C. 2951, 14 Envtl. L. Rep. 20,397, 14 Envtl. L. Rep. 20,521 STATE OF LOUISIANA, ex rel. William J. GUSTE, Jr., Attorney General, et al., Plaintiffs, Ventura Trading Co., Limited, Inc., et al., Plaintiffs-Appellants, v. The M/V TESTBANK, Her Engines, Tackle and Apparel, Her Owners, Etc., et al., Defendants, Partenreederei M/S Charlotta, Etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 748

728 F.2d 748

20 ERC 1950, 1984 A.M.C. 2951, 14

Envtl. L. Rep. 20,397,

14 Envtl. L. Rep. 20,521

STATE OF LOUISIANA, ex rel. William J. GUSTE, Jr., Attorney General, et al., Plaintiffs Ventura Trading Co., Limited, Inc., et al., Plaintiffs-Appellants, v. The M/V TESTBANK, Her Engines, Tackle and Apparel, Her Owners, Etc., et al., Defendants Partenreederei M/S Charlotta, Etc., et al., Defendants-Appellees.

No. 82-3059.

United States Court of Appeals Fifth Circuit.

April 2, 1984.

Opinion on Granting of Rehearing En Banc May 14, 1984.

Gelpi, Sullivan, Carroll & Laborde, Christopher A. Helms, Gerard T. Gelpi, New Orleans, La., for Ventura et al.

Sidney D. Torres, III, Kenneth B. Krobert, Chalmette, La., for Gulf Outlet et al.

Phelps, Dunbar, Marks, Claverie & Sims, James B. Kemp, Jr., New Orleans, La., for Farrell Lines, Inc.

Leger & Mestayer, Walter J. Leger, Jr., Courtenay, Forstall, Grace & Hebert, Thomas J. Grace, Theodore W. Brin, New Orleans, La., for Plaintiffs' Committee.

Farris, Ellis, Cutrone & Gilmore, Patrick L. Burke, Jr., J. Dwight LeBlanc, Kenneth J. Servay, Robert B. Fisher, Jr., New Orleans, La., for Partenreederei.

Walter Carroll, Jr., Jean Melancon, New Orleans, La., for Fortune Sea and London Steamship.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, REAVLEY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

I.

On July 22, 1980, the M/V SEA DANIEL collided with the M/V TESTBANK in the Mississippi River Gulf Outlet. This collision resulted in the spillage of a large quantity of highly toxic chemicals that were being carried aboard the TESTBANK. Because of the spillage, federal and state authorities closed off a large area of the Outlet and nearby waterways to navigation and commercial fishing for nearly three weeks.

The owners of the two vessels filed petitions for limitation of or exoneration from liability in the United States District Court for the Eastern District of Louisiana. Various parties filed claims in the limitation action; others filed complaints against the shipowners. The numerous cases involving the collision were all consolidated in the district court.

On December 16, 1981, the district court granted in part the defendants' motion for summary judgment and dismissed all of the plaintiffs except the commercial fishermen and oystermen. State of Louisiana ex rel. Guste v. M/V Testbank, E.D.La.1981, 524 F.Supp. 1170. In accordance with rule 54(b) of the Federal Rules of Civil Procedure, the district court certified this decision as a final judgment with respect to the dismissed plaintiffs. ¹ Those plaintiffs, now the appellants before this Court, comprise two groups of persons or businesses that allegedly suffered injury because of the closure of the Outlet: (1) vessel owners and terminal operators who lost profits and incurred additional expenses because of shipping delays ensuing from the closure of the Outlet, and (2) various commercial businesses (e.g., seafood dealers, marina operators, and bait and tackle shops) who suffered a loss in trade because of the closure.

II.

Building on the Supreme Court's decision in Robins Dry Dock & Repair Co. v. Flint, 1927, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290, the Fifth Circuit Court of Appeals has developed a doctrine of maritime law that controls the outcome of this case: in a suit based upon the alleged negligence of a defendant, a plaintiff cannot recover consequential economic losses if the alleged negligence has not caused any physical damage to the property or person of the plaintiff. Akron Corp. v. M/T Cantigny, 5 Cir.1983 (per curiam), 706 F.2d 151, 153; accord Kingston Shipping Co. v. Roberts, 11 Cir.1982 (per curiam) (summary calendar), 667 F.2d 34, 35, cert. denied, 458 U.S. 1108, 102 S.Ct. 3487, 73 L.Ed.2d 1369; see also Vicksburg Towing Co. v. Mississippi Marine Transport Co., 5 Cir.1980, 609 F.2d 176; Louisville & Nashville Railroad Co. v. M/V Bayou Lacombe, 5 Cir.1979, 597 F.2d 469; Dick Meyers Towing Service, Inc. v. United States, 5 Cir.1978, 577 F.2d 1023, cert. denied, 1979, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455.

The factual situation in the present case is in all relevant respects indistinguishable from that in Akron (and Kingston ). In Akron, the defendant vessel grounded in the Southwest Pass of the Mississippi River and thereby prevented large vessel traffic from entering or leaving that part of the river for several days. Owners and charterers of vessels blocked by the closure of the pass sued for additional expenses and other damages caused by the ensuing delays. Basing its decision on the Robins doctrine, the Court of Appeals affirmed the district court's grant of summary judgment for the defendant. The result was the same in Kingston. These cases are dispositive of the present appeal.

The decision of the district court is AFFIRMED.

WISDOM, Circuit Judge, concurring.

I write separately to suggest that the Fifth Circuit Court of Appeals reconsider this case en banc.

The Fifth and Eleventh Circuit decisions cited in the panel opinion have extended the Robins doctrine far beyond the actual holding of the Supreme Court in that case. In Robins, the propeller of a ship was negligently damaged by the operators of a shipyard. This damage caused a delay in the return of the ship to sea, and a party who had chartered the ship sued the shipyard for the charterer's economic losses that were sustained because of the delay. The plaintiff won in the trial court and on appeal to the Second Circuit Court of Appeals. The Supreme Court reversed, holding that the shipyard's damage to the propeller wronged only the owner of the ship. The Court further held that, because the charterer's contract with the shipowner was unknown to the repair yard, the contract was a matter of indifference to the yard. Therefore, negligent interference with the contract would furnish no basis for an action against the shipyard for profits lost by the charterer. As the Court stated,

[the plaintiff's] loss arose only through [its] contract with the owners--and while intentionally to bring about a breach of contract may give rise to a cause of action, no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another...