Board of Com'rs of Port of New Orleans v. Splendour Shipping & Enterprises Co., 4622

CourtCourt of Appeal of Louisiana (US)
Citation255 So.2d 869
Docket NumberNo. 4622,4622
PartiesBOARD OF COMMISSIONERS of the PORT OF NEW ORLEANS, an Agency of the State of Louisiana v. SPLENDOUR SHIPPING & ENTERPRESES COMPANY, Inc., et al.
Decision Date06 December 1971

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

Chaffe, McCall, Phillips, Toler & Sarpy, Paul A. Nalty and Leon Sarpy, New Orleans, for defendants-appellants.

Before LEMMON, GULOTTA and BOUTALL, JJ.

GULOTTA, Judge.

The question posed for our consideration is whether the Board of Commissioners of the Port of New Orleans, hereinafter referred to as the Dock Board, is immune from liability in tort under the doctrine of sovereign immunity of the state and, therefore, not amenable to suit.

This litigation arises out of a collision involving a vessel, S/S Ocean Splendour, owned by defendant company and the Florida Avenue Bridge which spans the Inner Harbor Navigation Canal (Industrial Canal) owned by the Dock Board.

The plaintiff filed suit against Splendour for the recovery of damages to the bridge and its related appurtenances caused by the accident. The defendant answered and reconvented for damages caused to the vessel alleging that the failure of the Dock Board to properly design, construct, maintain and repair the bridge and canal constitited an obstruction and hazard to navigation thereby impeding the safe passage of vessels in the channel. An exception of no right of action was filed to the reconventional demand alleging that the Dock Board is immune from suits in tort under the sovereign immunity of the state. The exception was maintained thereby dismissing the reconventional demand whereupon defendant took this devolutive appeal from that judgment.

Jurisdiction of this action is vested in the state courts under the provisions of 28 U.S.C. 1333, the 'savings to suitors clause'. 1

Removal was sought by Splendour to the United States District Court to no avail and the matter was remanded to the Civil District Court.

Any immunity enjoyed by a state evolves from the 11th amendment of the United States Constitution:

'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'

It is conceded by Splendour that the State of Louisiana, as an entity, has the common law right of 'soverign immunity'. However, appellant argues that the ultimate point as affects this appeal is whether the Dock Board is the State of Louisiana and thereby entitled to the same rights and protections of the State.

The Dock Board was created by Act 70 of 1896. Its provisions are found in Article 6, Sections 16 and 17 of the Louisiana Constitution and in LSA-R.S. 34:1--44. LSA-R.S. 34:21 sets forth the rights and powers of the board:

'The board of commissioners shall regulate the commerce and traffic of the port and harbor of New Orleans in such manner as may, in its judgment, be best for the maintenance and development thereof .

'It shall be the duty of the board to have charge of, and administer the public wharves, docks, sheds, and landings of the port of New Orleans which are owned and operated, or which may be purchased, acquired or operated by the board; to construct new wharves and other structures when necessary; to erect sheds and other structures on such wharves and landings; to place and keep these wharves and landings, sheds and other structures in good condition; to maintain proper depths of water at all such wharves and landings; to provide mechanical facilities for the use of such wharves, landings, sheds, and other structures; to provide light, water, police protection, and any other services for such wharves, landings, and sheds, as it may deem advisable; to finance, erect and operate all basins, locks, canals, and warehouse elevators; to charge for the use of the wharves, sheds, and other structures, for the use of all facilities administered by it, and for all services rendered by it, such fees, rates, tariffs or other charges as it may establish.'

While it is well settled that the Dock Board does not enjoy immunity in contract, as the agreement to contract waives this immunity, 2 the situation is quite different in connection with claims arising out of a tort action.

This question of tort immunity has been the concern of both federal and state courts. An analysis of the decisions from both jurisdictions indicates that there are several recent decisions which are in conflict within the federal court in this district. 3 In Prebensen & Blakstad v. The Board of Commissioners, 241 F.Supp. 757, 758 (1965), the Court in discussing the subject of immunity, differentiated between the immunity in contract and tort and stated:

'First: Is the Board immune from tort actions? That this question must be answered in the affirmative is well supported by the decisions of the Louisiana courts. The Board has never been successfully subjected to an action in tort.'

Judge Ainsworth concluded that the Board was not immune, however, in contract.

In the case of C. H. Leavell & Co. v. Board of Com'rs of Port of New Orleans, 424 F.2d 794, (5th Cir. 1970), the court held that the Dock Board as a state agency had a separate legal entity from the State of Louisiana For diversity jurisdiction purposes. The court concluded that since it was a separate entity from the state, diversity jurisdiction could be sustained. If the court in that case had concluded that the Dock Board was merely a second self of the state, then federal jurisdiction would have been lacking. The court used significant language in its opinion at page 765:

'* * * If the Dock Board is merely a second self of the State of Louisiana, A matter to be determind according to State law, then federal jurisdiction is lacking. Central Stikstof Verkoopkantoor, N .V. v. Alabama State Docks Department, 415 F.2d 452 (5th Cir. 1969)' (emphasis ours)

Whether or not the Dock Board is a separate entity from the state and not the state is important. If it is the state, it enjoys immunity. If not, and it is a separate entity, it does not enjoy this immunity, even in tort. If the Dock Board is an agent of the state and as such is the state or the alter ego of the state, it is the state and enjoys the immunity from such suits in tort.

The state law, which is our primary concern in the instant case, as state law is controlling in this matter, appears to be less contradictory. In the case of State ex rel. Tallant v. Board of Com'rs, 161 La. 361, 108 So. 770 (1926), the Supreme Court of Louisiana concludes that the Dock Board is not a corporation but a state agency administering public property to advance the prosperity of the port.

The court in Fouchaux v. Board of Com'rs, 186 So. 103, 105 (Orl.App.1939); aff'd 193 La.182, 190 So. 373 (1939); cert. den. 308 U.S. 554, 60 S.Ct. 112, 84 L.Ed. 466 (1939) said the Dock Board and State are one:

'As a matter of fact, the Dock Board seems to be recognized under the laws of this state as a little closer to the sovereignty than is an agency such as a municipality, or general agent given broad general powers. This agency, the Dock Board, is in effect the State itself. It is created for the purpose of doing one thing; that is, for the construction and operation of docks and wharves at the principal port of the State.' (emphasis ours)

In the case of Miller, etc. v. Board of Com'rs, 199 La. 1071, 7 So .2d 355 (1942) the supreme court held that the Board of Commissioners of the Port of New Orleans is an agency of the state and therefore not amenable to a suit in tort. See also: Lamport & Holt, Limited v. Board of Com'rs of Port of New Orleans, 137 La. 784, 69 So. 174 (1915).

Moreover, this court in the case of Board of Com'rs of Port of New Orleans v. Gypsum Transportation, Ltd., 209 So.2d 296 (La.App.4th Cir. 1968) writs refused, 252 La. 260, 210 So.2d 505, cert. den., 393 U.S. 938, 89 S.Ct. 302, 21 L.Ed.2d 275, involving a maritime tort wherein the question of liability was raised in a reconventional demand, as in the present matter, held that the Dock Board is an agency of the State of Louisiana and as such is immune from suit in tort. The reconventional demand was dismissed.

We find the conclusion reached in the Gypsum case to be sound. It is our opinion that the Dock Board as an agency of the State of Louisiana enjoys immunity in tort. We note further that the Louisiana Supreme Court denied writs and the United States Supreme Court refused certiorari. A reasonable interpretation of this action is that both the Louisiana Supreme Court and the United States Supreme Court found no error in the conclusions reached in that decision.

Appellant's contention, that the symmetry of maritime law in maritime proceedings is destroyed if the state law holding the Dock Board immune in tort is applied, is without merit. A determination that the Dock Board is immune in tort without its consent does not infringe upon the application of maritime concepts and maritime principles in the proceedings in state courts under the savings to suitors clause. There is no doubt that admiralty law is to be followed in the conduct of the proceedings.

The United States Supreme Court in the case of In Re State of New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed . 1057 (1921) was confronted with the same contention. That court stated at pages 502 and 503, 41 S.Ct. at page 591:

'There is no substance in the contention that this result enables the state of New York to impose its local law upon the admiralty jurisdiction, to the detriment of the characteristic symmetry and uniformity of the rules of maritime law insisted upon in Workman v. New York City, 179 U.S. 552, 557--560, 21 S.Ct. 212, 45 L.Ed. 314; Southern Pacific Co. v. Jensen, 244 U.S. 205, 215, 37 S.Ct....

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