Freimanis v. Sea-Land Service, Inc.

• Decision Date: 04 September 1981
• Docket Number: No. 80-3441,SEA-LAND,80-3441
• Parties: Edgar FREIMANIS, Plaintiff-Appellant, v.SERVICE, INC. and Department of Highways of the State of Louisiana, Defendants-Appellees. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1155

654 F.2d 1155

Edgar FREIMANIS, Plaintiff-Appellant, v. SEA-LAND SERVICE, INC. and Department of Highways of the

State of Louisiana, Defendants-Appellees.

No. 80-3441

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 4, 1981.

Wayne H. Carlton, Jr., New Orleans, La., for plaintiff-appellant.

Gelpi, Sullivan, Carroll & Laborde, Norman C. Sullivan, New Orleans, La., for Sea-Land Service, Inc.

Robert J. Jones, Baton Rouge, La., for Dept. of Highways.

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

Before GEE, RUBIN and RANDALL, Circuit Judges.

GEE, Circuit Judge:

This case arises out of a collision between the S/S MAYAGUEZ and the Danziger Bridge over the Innerharbor Navigation Canal in the City of New Orleans, Louisiana, on March 5, 1973. Sea-Land Services, Inc. ("Sea-Land") was the bare-boat charterer of the S/S MAYAGUEZ. The Danziger or Highway 90 Bridge was owned by the Department of Highways for the State of Louisiana (later reorganized under the name of Department of Transportation and Development) ("Department"). Edgar Freimanis was the boatswain of the MAYAGUEZ at the time of the collision.

At the time of the accident, the MAYAGUEZ made a regular ten-day run between Puerto Rico and New Orleans. In New Orleans the vessel docked at Sea-Land's Morrison Road Wharf. The vessel was accustomed to reaching the wharf by coming through the Mississippi River Gulf Outlet to the Innerharbor Navigation Canal and then beneath the L & N Railroad Bridge, the Danziger Bridge, to a turning basin, where it would turn and dock portside to the wharf. The vessel, nearly 500 feet in length and 75 feet wide, frequently experienced difficulty in passing beneath both the L & N and the Danziger Bridges. Quite often, due to the narrow passageway and the width of the vessel itself, it would collide with the fender systems of either or both bridges.

The procedure followed in approaching the Morrison Street Wharf from the Mississippi River Gulf Outlet was for the vessel to radio the tender of the L & N Railroad Bridge and advise him that the vessel was approaching. Once the bridge tender confirmed that he could open the L & N Bridge, the vessel would proceed and request the tender to contact his counterpart at the Danziger Bridge. Only on some occasions would there be direct contact between the vessel and the Danziger Bridge. The distance between the L & N Bridge and the Danziger Bridge was approximately 1,000 feet, so that as the stern of the MAYAGUEZ cleared the L & N Bridge, the bow would be about halfway to the Danziger Bridge. In deference to vehicular traffic crossing it, the Danziger Bridge usually waited until the last minute to open. While the vessel was traversing the bridges, plaintiff Freimanis' duty station was at the bow of the vessel by the anchors with the second officer. The second officer was able to communicate with the captain and the pilot at the wheelhouse should it become necessary to lower the anchors. Once the vessel cleared the Danziger Bridge, Freimanis was to proceed to the gangway area in order to ready it for docking. One gangway was on the port side of the vessel, under the port wing of the vessel's superstructure. There was also a gangway on the vessel's starboard side. Once the vessel began passing through the L & N Bridge, it would be difficult for it to stop without damage should the Danziger Bridge fail for any reason to open.

On the day of the accident, the vessel cleared the L & N Bridge without incident. It then proceeded to the Danziger Bridge, which had been alerted to the vessel's approach. On this occasion the left or west span of the drawbridge failed to open fully because of a malfunctioning limit switch. As the wheelhouse and wings of the vessel approached the bridge, the captain, not realizing that the bridge had failed to open fully, began shouting out lower clearances until there was no clearance between the vessel and the fender system at all. The port wing of the vessel collided with the bridge, receiving severe damage. Not long after the collision, Freimanis, on deck to ready the gangway, was seriously injured by debris that fell from the damaged wing.

Plaintiff filed suit against Sea-Land and the Department of Highways of the State of Louisiana. The matter was set for trial before a jury in January 1979. The Department filed a motion to dismiss on December 1978, claiming eleventh amendment immunity. The trial court denied the motion, and trial was later continued until July 1979. Several days before trial, the state again urged the motion to dismiss. The case proceeded to trial before a jury, which returned a verdict in favor of plaintiff and against the Department in the amount of $220,000. The jury found that Sea-Land was not negligent and that the vessel was not unseaworthy. The trial court ultimately set aside and vacated the verdict of the jury, finding that the state was entitled to immunity under the eleventh amendment to the United States Constitution, and denied Freimanis' motion for judgment n.o.v. or, alternatively, for a partial new trial as to Sea-Land. Freimanis now appeals to this court. For the reasons given below, we affirm the trial court in all respects.

Eleventh Amendment Immunity

Appellant does not dispute established law that, in the absence of waiver or congressional abrogation of its immunity, a state is immune from suits brought in federal court by her own citizens, as well as by citizens of another state, under the eleventh amendment to the United States Constitution. Parden v. Terminal Railroad Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). Nor does appellant dispute the Department's claim that it is an integral and explicit part of the executive branch of the Louisiana state government, entitled to invoke the eleventh amendment limitation on the judicial power of the United States. Appellant argues instead that Congress abrogated Louisiana's eleventh amendment immunity for the purposes of this case through the Rivers and Harbors Appropriation Act of 1899 and the Bridge Act of 1906 or, alternatively, that the State of Louisiana waived its immunity by its participation in earlier proceedings before the district court.

The appellant urges us to reconsider our decision in Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361 (5th Cir. 1973), a case that counsel acknowledges is indistinguishable in all relevant respects from the case here, in light of recent developments. In that case, we held that Georgia did not subject itself to a suit for damages for alleged negligent operation of a drawbridge when it entered a federally regulated activity by building a bridge over navigable waters. After a thorough review of the authorities, including Parden v. Terminal Railway, supra, and Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 452 F.2d 820 (8th Cir. 1971) (en banc), we concluded that a state's eleventh amendment immunity was not to be overridden lightly:

It is no longer sufficient merely to show that a State has entered a federally regulated sphere of activity and that a private cause of action is created for violating the applicable federal provision, but in addition the private litigant must show that Congress expressly provided that the private remedy is applicable to the States.

482 F.2d at 365.

We conclude that under the teachings of the Parden and Employees decisions before a State can be held to have implicitly waived its eleventh amendment defense, Congress must have expressly created a remedy in private parties for the violation of the applicable federal regulatory statute. To conclude otherwise would require a finding that the Bridges Act of 1906 created a private cause of action, a statutory interpretation clearly not mandated by its provisions. Further we would have to take an additional step into the murky waters of congressional intent by assuming since Congress "intended" that the appellee be a beneficiary of the substantive prohibitions of the Bridges Act of 1906, this intended remedy is also applicable against a sovereign State. Such "bootstrap logic" cannot withstand the constitutional shield erected by the eleventh amendment.... Against the unambiguous prohibitions of the eleventh amendment, we deem it constitutionally insufficient for a court merely to conclude that Congress by enacting a federal regulatory scheme implied that a state would be amenable to its provision in a suit by a private party. If Congress wishes a state to be amenable to a private suit then we think it up to that branch to take the proper action necessary for such a result.

Id. at 366 n.14 (emphasis in original).

Contrary to the appellant's arguments, we find that the foundations of Intracoastal are still solid. If anything, the authorities in favor of what has come to be called the "clear statement" ¹ approach with regard to eleventh amendment immunity have grown more numerous since our 1973 decision in Intracoastal. In the decade following Parden, the Supreme Court has taken several opportunities to affirm the clear statement approach. In 1973, the Court affirmed Employees, supra, the Eighth Circuit opinion that was the touchstone of Intracoastal. 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). The Court reaffirmed that Congress had power to lift states' eleventh amendment immunity from suit in federal court but stated that Congress "would not be presumed to take such action silently." Id. at 285, 93 S.Ct. at 1618. Accordingly, Justice Douglas searched the legislative history of the Fair Labor Standards Act in vain for "a word ... to indicate a purpose of Congress to make it possible for a citizen ... to sue the state in federal courts" and concluded that Missouri was immune from a suit by state hospital and training school employees for compensation in federal court. Id. A year later, in ...