Board of Com'rs of Port of New Orleans v. Gypsum Transp., Limited

• Decision Date: 08 April 1968
• Docket Number: No. 2829,2829
• Citation: 209 So.2d 296
• Parties: BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, an Agency of the State of Louisiana, v. GYPSUM TRANSPORTATION, LIMITED, and Crescent Towing & Salvage Co., Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 296

209 So.2d 296

BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, an Agency of the State of Louisiana, v. GYPSUM TRANSPORTATION, LIMITED, and Crescent Towing &amp Salvage Co., Inc.

No. 2829.

Court of Appeal of Louisiana, Fourth Circuit.

April 8, 1968.

Rehearing Denied May 6, 1968.

Writ Refused June 4, 1968.

Deutsch, Kerrigan & Stiles, Cornelius G. Van Dalen, New Orleans, for Board of Commissioners of Port of New Orleans, plaintiff-appellee.

Chaffe, McCall, Phillips, Burke, Toler & Hopkins, Paul A. Nalty and Leon Sarpy, New Orleans, for Gypsum Transportation Limited, et. al., defendant-appellant.

Before SAMUEL, CHASEZ and HALL, JJ.

CHASEZ, Judge.

This is an appeal by defendant Gypsum Transportation, Limited, hereinafter referred to as 'Gypsum', from a judgment sustaining an exception of no right of action filed against it by the plaintiff Board of Commissioners of the Port of New Orleans, hereinafter referred to as 'The Board'. The Board's exception was directed at Gypsum's reconventional demand against the Board and was based on the principle of sovereign immunity.

The suit arose out of a collision in the inner harbor navigation canal (Industrial Canal) in the Port of New Orleans. Gypsum's vessel, the S/S GYPSUM QUEEN, under the assistance of the tuge PORT ALLEN and ORLEANS, owned by defendant Crescent Towing & Salvage Co. Inc., hereinafter referred to as 'The Towing Company', collided with the main bridge structure of the Gentilly (L & N Railroad Crossing) Bridge. The Board was and still is the owner of the damaged bridge.

The board filed suit against Gypsum and The Towing Company, alleging negligence and unseaworthiness on the part of both defendants and asked for damages of $30,134.93. Gypsum in its answer to the Board's petition by way of reconventional demand, claimed $63,253.21, being the amount of loss it alleges it suffered to its vessel in the incident. It alleged the cause of the collision was 'the faulty design, construction, maintenance, repair and rebuilding of the Inner Harbor Navigation Canal in the Port of New Orleans, and from the negligence of the Board of Commissioners of the Port of New Orleans.'

As stated previously, the Board raised the peremptory exception of no right of action to Gypsum's Reconventional Demand, based on its alleged sovereign immunity as an agency of the State of Louisiana. Gypsum in turn raised the exception of no right of action to the Board's suit against it. The exceptions were heard jointly, and the Board's exception was sustained while Gypsum's was denied.

Gypsum now bases its appeal on the contention that the judgment barring its reconventional demand against the Board has eliminated the substantive defenses afforded it under maritime law. Further, it claimed that as the State Court must apply maritime law to this case, it cannot allow its own state concepts of immunity to act in derogation of defendant's rights under maritime law.

The Board counters this with the assertion that the trial court's action in sustaining the peremptory exception did not take away any of Gypsum's defenses under maritime law, that these defenses are inherent in maritime law itself, which must of necessity be applied in this case. The Board contends that all the exception did was to prevent Gypsum from realizing a money judgment against the state in the face of the State's sovereign immunity.

Of course the above statements are to some extent an over-simplification of each party's position in this appeal, as the matter involves technical problems of maritime law which never readily lend themselves to simple statements.

There is little doubt that the Board of Commissioners of the Port of New Orleans is an agency of the State of Louisiana and as such is immune from suit. Miller v. Board of Com'rs, etc., 199 La. 1071, 7 So.2d 355 (1942). It is equally well settled that a State Court must apply substantive admiralty law to resolve the issues raised in a case such as this. Rojas v. Robin, 230 La. 1096, 90 So.2d 58 (1956); Beavers v. Butler, La.App., 188 So.2d 725 (La.App.2d Cir.1966). A...