Bordelon v. T. L. James & Co.

• Decision Date: 30 January 1980
• Docket Number: No. 7465,7465
• Citation: 380 So.2d 226
• Court: Court of Appeal of Louisiana — District of US
• Parties: Irwin BORDELON and Hubert Wiley, Plaintiffs-Appellees, v. T. L. JAMES & COMPANY, Defendant-Appellant.

Page 226

380 So.2d 226

Irwin BORDELON and Hubert Wiley, Plaintiffs-Appellees, v. T. L. JAMES & COMPANY, Defendant-Appellant.

No. 7465.

Court of Appeal of Louisiana, Third Circuit.

Jan. 30, 1980.

J. Fredrick Kessenich, New Orleans, for defendant-appellant.

George Griffing, Jonesville, for plaintiff-appellee.

Before FORET, CUTRER and DOUCET, JJ.

FORET, Judge.

This lawsuit is based on claims for damages due as a result of the alleged negligent acts of the defendant in causing damage to the plaintiffs' fishing nets. The nets were in use in the Red River. The defendant, T. L. James and Company, appeals from a judgment rendered in favor of Mr. Hubert Wiley, plaintiff, awarding damages in the amount of $1,707.42, this sum being the value of twelve hoop fishing nets valued at approximately $140.00 per net and loss of income of $180.00, plus court costs.

The facts reveal that the plaintiff is a commercial fisherman earning his livelihood by fishing with hoop nets on the Red River. The plaintiff claims that his hoop nets were negligently destroyed by the defendant during certain dredging operations by the dredge boat "ARMIDILLO". The defendant was dredging in the area pursuant to a contract with the Department of the Army, Corps of Engineers.

Originally, there were five plaintiffs and all cases were consolidated. All the plaintiffs, except for Mr. Wiley, lost in the trial court because the court found that they were attempting to prove their damages due to faulty navigation of the dredge boat rather than the dredging operations themselves.

The facts further show that Mr. Wiley pulled up his nets and kept them out of the river for several days when he became aware of the fact that dredging operations were to begin in the area where he usually fished. Mr. Wiley's son had worked on the dredge for several days. His son had informed him that the dredge boat would be proceeding south or downstream from the point where they initially were to dredge. This information was confirmed by a navigation bulletin, defendant's exhibit "C", which stated that the dredge would work downstream from the point of beginning. As stated before, in view of this information, Mr. Wiley pulled his nets from the river and kept them on the bank for several days. After the dredge had passed his usual fishing site, he then replaced his nets in the river where he marked them with one-gallon plastic jugs. Shortly thereafter, the dredge boat was required by the Corps of Engineers, with whom the defendant had a contract, to return upstream and dredge out a shallow area which had apparently been omitted or missed during the primary dredging operation. This is where the damage to Mr. Wiley's nets occurred. The crew of the dredge were required to follow the orders of the Corps of Engineers with respect to when and where to dredge.

The first issue presented is whether or not this matter is controlled by Federal law and/or the general maritime law. It is undisputed that the Red River is a navigable water body of the United States and as such, is within the power of Congress to regulate pursuant to Article 1, Section 8 of the United States Constitution. In order for an activity or an occurrence to be governed by Federal or general maritime law, either Congress must have passed legislation making the activity or the occurrence one which is governed by Federal or maritime law, or it is an activity which has maritime locality and a sufficient maritime nexus to mandate its falling under said law.

In order for a wrong to be governed by the admiralty law of the United States, maritime locality plus a significant relationship to traditional maritime activity must be present. Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).

In determining whether there is maritime jurisdiction, circumstances to be considered are functions and roles of parties, types of vehicles and instrumentalities involved, causation and type of injury and traditional concepts of the role of admiralty law. Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973) rehearing denied, 486 F.2d 1403; certiorari denied, Chicot Land Co., Inc. v. Kelly, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974).

In the case at bar, the conduct complained of took place on a navigable water body. The ARMIDILLO is a vessel within the meaning of the general maritime law. Additionally, fishing is a traditional maritime activity. In view of the location, circumstances of the case, roles of the parties, and types of instrumentalities involved, we find that this matter is governed by the general maritime law and applicable Federal law.

A state court is required to apply Federal maritime law in a case within Federal admiralty jurisdiction. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Chelentis v. Luckenbach, S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). Whether a suit is brought in Federal court pursuant to its admiralty jurisdiction or, under the "saving to suitors clause", is brought by ordinary civil action in a non-maritime court, Federal substantive admiralty or maritime law is applicable if the claim is one cognizable in admiralty. U.S.C.A.Const., Article 3, Sec. 2; 28 U.S.C.A. Sec. 1333; Lavergne v. Western Company of North America, Inc., 371 So.2d 807 (La.1979).

Appellant contends that appellee's fishing nets constituted an obstruction within the meaning of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.A. Sec. 401, et seq. In particular, appellant refers to Section 403 of Title 33, U.S.C.A.¹ This section prohibits the unauthorized building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or Other structure in any navigable water or other water of the United States. A search of the jurisprudence has revealed no case which has held this type of fishing net to be an obstruction as defined by the above mentioned statute. Appellant relies on the case of Alaska Pacific Fisheries v. United States,² as being authority to the effect that a fish net is an "other structure" within the meaning of Section 403. In the Alaska Fisheries case, the net or structure which was held to be an obstruction under this statute was an extensive fish trap which was located within an Indian reservation. For this reason we do not think that this case is authority for holding...