In re Ingram Barge Co.

• Decision Date: 25 May 2006
• Docket Number: Civil Action No. 05-4419.
• Citation: 435 F.Supp.2d 524
• Parties: In the Matter of the Complaint of INGRAM BARGE COMPANY, as Owner of the ING4727, Petitioning for Exoneration from or Limitation of Liability.
• Court: U.S. District Court — Eastern District of Louisiana

435 F.Supp.2d 524

In the Matter of the Complaint of INGRAM BARGE COMPANY, as Owner of the ING4727, Petitioning for Exoneration from or Limitation of Liability.

Civil Action No. 05-4419.

United States District Court, E.D. Louisiana.

May 25, 2006.

Lawrence D. Wiedemann, Karen Wiedemann, Karl Wiedemann, Wiedemann & Wiedemann, New Orleans, LA, Brian Arthur Gilbert, Law Office of Brian A. Gilbert, PLC, Patrick Joseph Sanders, Patrick J. Sanders, Attorney at Law Metairie, LA, Robert B. Evans, III, Burgos & Evans, LLC, Ashton Robert O'Dwyer, Jr., Ashton R. O'Dwyer, Jr., Attorney at Law, New Orleans, LA, for Plaintiff.

Sherman Gene Fendler, David W. Leefe. Liskow & Lewis, Don Keller Haycraft, Robert Burns Fisher, Jr., Daniel Andrew Webb, Sutterfield & Webb, LLC, Derek Anthony Walker, Chaffe, McCall, Phillips, Toler & Sarpy, LLP, New Orleans, LA, John Aldock, Mark Raffman, Goodwin Procter LLP, Washington, DC, Erin Fury Parkinson, McGlinchey Stafford PLLC, Baton Rouge, LA, Robin D. Smith, Phyllis Jackson Pyles, U.S. Department of Justice, Washington, DC, Arthur Gordon Grant, Jr., Montgomery, Barnett, et al., Baton Rouge, LA, Philip S. Brooks, Jr., Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Defendant.

ORDER

BERRIGAN, District Judge.

Before the Court is the United States' Motion to Dismiss for lack of subject matter jurisdiction (Rec.Doc.88). The government contends that claimants have failed to exhaust their administrative remedies as required for this Court to assert jurisdiction under various federal statutes including the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), 2671-2680 ("FTCA"). For the following reasons, the motion is GRANTED.

Background:

The allegations in this case arise out of the damage caused by the flooding that ravaged New Orleans after Hurricane Katrina. In particular, this action concerns the injuries to people and property resulting from the flooding of the Industrial Canal, the Mississippi River Gulf Outlet ("MRGO"), and the Gulf Intracoastal Waterway ("GICW') which was allegedly caused by breaches in the levees and floodwalls that contain those waterways. The precise cause of the levee and floodwall breaches and the resultant flooding is a matter of substantial debate and impacts the outcome of the jurisdictional question.

Claimants' various filings amount to the following three specific claims against the United States:

1.) Defective design and construction of the Industrial Canal floodwall by the USACE (Rec.Doc.12).

2.) Failure by the USACE and the United States Coast Guard ("USCG") to order the intentional sinking of the Ingram barge in the face of an approaching Category 5 hurricane (Rec.Doc.12).¹

3.) Negligent design, construction, and maintenance of the MRGO and the levee and floodwall systems along the MRGO, GICW, and Industrial Canal. (Rec.Doc. 108).

The Law:

Whether or not the Court has jurisdiction to hear the various claims raised against the United States depends on the source of that jurisdiction. There are three principal statutes which could plausibly confer jurisdiction.² They are the FTCA, the Suits in Admiralty Act, 46 App. U.S.C. § 742 ("SAA"), and the Admiralty Extension Act, 46 App.U.S.C. § 740 ("AEA"). While each of the three statutes contain an explicit waiver of sovereign immunity, the statutes differ as to the procedural requirements that must be met before the Court has jurisdiction to entertain the suit. The next section describes the purpose, jurisdictional scope and procedural requirements of each of the three statutes before applying them to the claims raised in this case.

The FTCA:

The FTCA makes the United States liable for the negligent acts of its employees. The government is correct to argue that § 2675 requires that administrative remedies be exhausted before a suit may be filed against the government under this statute. Failure to do so leaves "the district court ... without subject matter jurisdiction." Price v. United States, 81 F.3d 520, 521 (5th Cir.1996). Further, courts "must strictly construe the statute, any ambiguities will be resolved in favor of the sovereign." McLaurin v. United States, 392 F.3d 774, 780 (5th Cir.2004). As noted by the Fifth Circuit, "[S]uits filed [under the FTCA] must be filed in exact compliance with the terms of consent ...." Gregory v. Mitchell, 634 F.2d 199 (1981). Suits that claim some sort of tortious conduct by the United States generally arise under the FTCA and such claims therefore generally require exhaustion. The SAA, however, provides an exception to the exhaustion requirement for admiralty and maritime claims against the United States, including maritime torts.

The SAA:

The SAA waives sovereign immunity for admiralty proceedings against the United States. Unlike the FTCA, the SAA contains no statutory requirement that claims be administratively exhausted before being filed in court. By the express terms of the FTCA, the FTCA "shall not apply to ... [a]ny claim for which a remedy is provided by the Suits in Admiralty Act." 28 U.S.C. § 2680(d). Courts interpreting this language have concluded that claims which could be maintained in admiralty under the SAA are not actionable under the FTCA. See McCormick v. United States, 680 F.2d 345 (5th Cir.1982). Determining whether a claim arises under the SAA or FTCA involves the application of a standard admiralty jurisdictional analysis, such as that set forth in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).

The AEA:

The AEA provides: "The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 App.U.S.C. § 740 (emphasis added). The AEA's purpose was nearly exclusively to overrule "cases holding that there is no admiralty jurisdiction when a negligently operated ship on navigable waters collides with a bridge or pier causing substantial property damage." Adams v. Harris County, Tex., 316 F.Supp. 938 (D.C.Tex. 1970). It is undisputed that the damages alleged in this case occurred on land, satisfying the AEA requirement that the "damage or injury be done or consummated on land." However, the caselaw makes clear that the AEA only applies when the injury was caused "by a vessel" and "her appurtenances." Egorov, et. al., v. Terriberry, Carroll, et. al., 183 F.3d 453, 456 (5th Cir.1999). The AEA contains an explicit administrative exhaustion requirement that mirrors that of the FTCA.

In sum, negligence claims against the United States that do not arise under this Court's admiralty jurisdiction are filed pursuant to the FTCA and require administrative exhaustion. Negligence claims against the United States that do arise under this Court's admiralty jurisdiction will require exhaustion only if the allegation involves damages on land caused by a vessel. If the claim alleges damage on land caused by a vessel, the claim arises under the AEA and requires administrative exhaustion. If the claim does not involve damage caused by a vessel, but nonetheless still arises under the Court's admiralty jurisdiction, as claimants contend, the claim is made pursuant to the SAA and does not require administrative exhaustion.³

Jurisdictional Analysis of barge-related claims:

Though history, Congress and the Supreme Court have continuously reshaped the scope of the federal judiciary's authority to hear admiralty cases. See, e.g. Grubart, Inc. v. Great Lakes Dredge & Dock, 513 U.S. 527, 532, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (describing history of admiralty jurisdiction); Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972); Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982); Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). Presently, in order to invoke federal admiralty jurisdiction under 28 U.S.C. 1333(1), a party must satisfy each of the so-called "location" and "connection"⁴ tests. Grubart, 513 U.S. at 534, 115 S.Ct. 1043; see also In re Madison Coal & Supply Co., Inc., 321 F.Supp.2d 809, 812 (S.D.W.Va.2003)("Failure to establish either the location or the connection test is fatal to an assertion of admiralty jurisdiction.").

The location test, which emerges in part from the AEA, asks "whether the tort occurred on navigable waters or whether injury suffered on land was caused by a vessel on navigable water." Grubart, 513 U.S. at 534, 115 S.Ct. 1043; see also 46 App.U.S.C. § 740. Courts read the "caused by" language of the statute to require the traditional tort law concept of "proximate cause." Margin v. Sea — Land Services, Inc., 812 F.2d 973, 976 (5th Cir. 1987)("The vessel or its defective appurtenances must be the proximate cause of the accident. This court has refused to extend the reach of the Act absent proximate cause"); See also Grubart, 513 U.S. at 536, 115 S.Ct. 1043 ("The Act uses the phrase `caused by,' which more than one Court of Appeals has read as requiring what tort law has traditionally called `proximate causation.' ").

The connection test flows from the Supreme Court admiralty jurisprudence culminating in its opinion in Sisson. The test has two parts. First, a court must "assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce." Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (quoting Sisson, 497 U.S. at 363-64, 110 S.Ct. 2892) (internal citations and quotations omitted). Second, "a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Id. (quoting Sisson, 497 U.S. at 364-65, 110 S.Ct. 2892)(internal citations and quotations omitted). See Sisson, 497 U.S. at...