Graci v. United States

• Decision Date: 21 May 1971
• Docket Number: No. 29015.,29015.
• Citation: 456 F.2d 20
• Parties: Benjamin T. GRACI, Jr., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Philip C. CIACCIO, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Emanuel REID, Jr., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.2d 20 (1971)

Benjamin T. GRACI, Jr., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

Philip C. CIACCIO, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

Emanuel REID, Jr., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 29015.

United States Court of Appeals, Fifth Circuit.

May 21, 1971.

Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Morton Hollander, Chief, Appellate Section, Kathryn H. Baldwin, Robert V. Zener, Attys., U. S. Dept. of Justice, Washington, D. C., for defendant-appellant.

Evangeline M. Vavrick, New Orleans, La., Amicus Curiae.

Jerald N. Andry, Gibson Tucker, Jr., Joseph J. Laura, Jr., Ignatz G. Kiefer, Charles G. Jacques, Jr., James F. Mulla, Jr., New Orleans, La., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

In storm and fury "Betsy's" winds and resulting high waters wrought destruction upon the plaintiffs' property and that of many others living in 1965 in Louisiana near the Gulf of Mexico.

These three consolidated cases present the single question whether the immunity clause contained in § 3 of the federal Flood Control Act of 1928, 33 U.S.C. § 702c, applies to these actions under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., for floodwater damage allegedly caused by the negligence of the United States in the construction of the Mississippi River—Gulf Outlet, a navigation project that provided a short-cut from the Gulf of Mexico to New Orleans. We conclude that § 3 does not bar these suits and affirm the judgment of the district court denying the Government's motion to dismiss. In doing so we rely heavily upon the anaylses and well documented opinions of District Judges Herbert C. Christenberry and Frederick J. R. Heebe.

I.

The Mississippi River—Gulf Outlet is a deep water channel constructed by the Corps of Engineers in the late 1950's and early 1960's at an estimated cost of $88,000,000. The channel is approximately 66 miles long, including 46 miles of "land cut," and runs from the Gulf of Mexico through the parishes of St. Bernard and Plaquemines to New Orleans. The outlet enables ships from ports east of the Mississippi River to head north for New Orleans at Breton Sound, many miles east of the river mouth, at a saving of sixty miles. Ships thus pass from Breton Sound through the outlet into the Industrial Canal and then into the Mississippi River.

These cases began in September 1965 when Hurricane "Betsy" struck the southeastern Louisiana coast. The plaintiffs are owners of property in Orleans and St. Bernard parishes who suffered damage when hurricane-driven waters overflowed the outlet and flooded their properties. Shortly thereafter the plaintiffs filed these suits against the United States in the United States District Court for the Eastern District of Louisiana. Upon the suggestion of the United States, the district court consolidated the three cases for trial.

The complaints charged that before the construction of the outlet the plaintiffs' properties had been free from hurricane-driven waters, but that as a direct and proximate result of the construction of the outlet the plaintiffs' properties were exposed to the "effects and encroachments of the storm driven waters of Hurricane `Betsy.'" The plaintiffs alleged that the outlet had been negligently constructed and specifically pleaded the doctrine of res ipsa loquitur. In the alternative, and only in the event that the doctrine of res ipsa loquitur be held inapplicable, the plaintiffs alleged that the Government's negligence consisted of constructing the outlet "without taking appropriate steps to impede and lead off rising hurricane waters before they reached the residential areas of the surrounding country, and without taking the appropriate steps to build retaining levees to protect the residential areas of the surrounding country from flooding due to hurricane driven waters."

The United States moved to dismiss the complaints on several grounds, one of which was that § 3 of the Flood Control Act of 1928, 33 U.S.C. § 702c, barred suits against the United States for damages resulting from floods or flood waters.¹ The district court denied the motion. With respect to the § 3 ground, Judge Christenberry held that the Mississippi River—Gulf Outlet was not a flood control project but a navigation aid project and that § 3 did not bar suits against the United States for floodwater damage resulting from the Government's negligence unconnected with flood control projects. The United States conceded that the outlet was a navigation aid project but argued that in any case § 3 afforded it immunity. On that ground the United States moved for a rehearing on the motion to dismiss.² Later the docket in the Eastern District of Louisiana was reorganized and these cases were assigned to Judge Heebe. In June 1969 Judge Heebe wrote an opinion thoroughly discussing the Government's § 3 contention. Concluding that Judge Christenberry had correctly denied the motion to dismiss, Judge Heebe denied the motion for a rehearing. See Graci v. United States, E.D.La.1969, 301 F.Supp. 947. This Court granted the Government leave to take an interlocutory appeal from that order.³See 28 U.S.C. § 1292(b).

II.

On appeal the United States contends that § 3 of the Flood Control Act of 1928, 33 U.S.C. § 702c, affords the Government an absolute immunity from liability for floodwater damage regardless whether the negligence alleged was in connection with a flood control project or a navigation aid project. The United States argues also that the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., did not in any way repeal the immunity that § 3 grants.

In pertinent part § 3 reads as follows:

No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place . . .

33 U.S.C. § 702c.⁴ The legislative history of § 3 is singularly unrevealing. The immunity provision was not introduced into the flood control bill until shortly before the final version of the bill was enacted into law. The provision was then adopted with little or no discussion. The only comment concerning the provision that the district court could find was that of a House member "to the effect that in engaging itself in flood control works, the government should not lay itself open to suits for flood damage." 301 F.Supp. at 953 n. 8. Our independent review of the legislative history, with the aid of the parties, has uncovered nothing more illuminating. We can ascribe no special significance to the fact that the flood control bill also included appropriations for channel stabilization and navigation improvement. The thrust of the measure was flood control, and it was in that context that § 3 was enacted. Both parties attempt to read meaning in the Title and Chapter headings of the United States Code volume in which § 3 can now be found. That approach seems to us, as it did to Judge Heebe, at least in this case, to be speculative and unenlightening. See 301 F. Supp. at 953-954.

The leading case on the construction of § 3 is the Eighth Circuit's decision in National Manufacturing Co. v. United States, 8 Cir. 1954, 210 F.2d 263. As Judge Heebe observed, the National Manufacturing case was the first case to uphold the vitality of the § 3 immunity in the face of the broad waiver provisions of the Federal Tort Claims Act. 301 F.Supp. at 951. In that case several owners of property situated along the Kansas River brought suit against the United States under the Federal Tort Claims Act to recover for the floodwater damage suffered by them in the course of a July 1951 flood. The Kansas River had long been subject to floods, and the United States has constructed flood control dams, levees, dikes, and other works along the river in an attempt to prevent or minimize the danger of flooding. As an incident to the flood control program several government agencies, including the Corps of Engineers, the Geological Survey Section of the Department of the Interior, and River Forecasters of the Weather Bureau, regularly gathered information concerning the rise and fall of the waters of the river and its tributaries and the rainfall in the area and disseminated reports to the populace along the river. The property owners' complaint charged that in July 1951 the United States, knowing that the river was in danger of flooding, negligently assured the plaintiffs that the river would not overflow its banks and negligently failed to warn the plaintiffs of the impending overflow in time for them to provide for the safety of their property. The district court granted the Government's motion to dismiss on the ground, inter alia, that § 3 barred recovery against the United States for floodwater damage.⁵

The Court of Appeals for the Eighth Circuit, affirming the judgment of the district court, articulated the rationale of § 3:

when Congress entered upon flood control on the great scale contemplated by the Acts of 1928 and 1936 it safeguarded the United States against liability of any kind for damage from or by floods or flood waters in the broadest and most emphatic language. The cost of the flood control works itself would inevitably be very great and Congress plainly manifested its will that those costs should not have the flood damages that will inevitably recur added to them. Undoubtedly floods which have traditionally been deemed "Acts of God" wreak the greatest property destruction of all natural catastrophies and where floods occur after flood control work has been done and relied on the damages are vastly increased. But there is no question of the power and right of Congress to keep the government entirely free from liability when floods occur, notwithstanding the great government works undertaken to minimize them.

. . . . . .

So that uniformly and throughout the country at any

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