Skansi v. Signal Petroleum
| Decision Date | 11 September 1979 |
| Docket Number | No. 10058,10058 |
| Citation | 375 So.2d 965 |
| Parties | Nick L. SKANSI v. SIGNAL PETROLEUM et al. |
| Court | Court of Appeal of Louisiana — District of US |
Malvern F. Driscoll, New Orleans, for plaintiff-appellant.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, for defendants-appellees John W. Mecom and Fowler Drilling Co.
Milling, Benson, Woodward, Hillyer & Pierson, R. King Milling and W. Richard House Jr., New Orleans, for defendant-appellee Signal Petroleum.
Before SAMUEL, LEMMON and STOULIG, JJ.
This is an action by an oyster fisherman to recover damages to his leased oyster beds caused by petroleum pollution in the area. In plaintiff's appeal seeking an increase in the $7,500.00 award, the principal issue is the method of measuring the damages.
In his 20 years in the oyster business plaintiff had obtained a considerable number of leases of water bottoms for the purpose of seeding and harvesting oysters. He generally planted seed oysters in September and October, selecting the best areas from among his leases on the basis of judgment, experience and current conditions, and he harvested mature, marketable oysters between 6 and 24 months after bedding, depending among other things upon the size and source of the seed oysters and the conditions in the bedding area. Plaintiff generally harvested mature oysters from January through June, although in some years harvesting began earlier or lasted later.
One of plaintiff's best areas for production was on leased property in Bayou Grand Cheniere, where the pollution at issue occurred from three oil spills in 1974. Each year between 1969 and 1973 plaintiff had planted a considerable number of seed oysters in that area, except in 1970 when at normal seeding time the leased area was occupied by oysters which had been planted as small oysters in 1969 and were not yet of marketable size in the spring and summer of 1970.
Because seed oysters were scarce in 1973, plaintiff planted only 10,890 sacks, about half the amount he had planted in each of the four previous years. However, he planted 6,540 sacks on the leased property in Bayou Grand Cheniere, and he planned to harvest there the following spring or summer, as he had in previous years. 1
In April, 1974 plaintiff began harvesting oysters in Bayou Grand Cheniere and had fished 3,848 sacks by June 24, at which time his customers complained that the oysters had an oily taste. He discontinued operations there, notifying the Department of Wildlife and Fisheries of the problem. An agent from the Department discovered evidence of an oil spill and confirmed the oily taste of the oysters, noting they were then of marketable size with low mortality.
Oysters eventually purge themselves of an oily taste, but because of two additional spills, the oysters on plaintiff's lease did not return to normal until April, 1975. Plaintiff then resumed harvesting in the area, taking 7,610 sacks there in addition to the 3,848 sacks he had already fished there. However, because he had been unable to complete harvesting on that property in June, 1974 and to reseed that fall, he lost a year's production on the Bayou Grand Cheniere property, and that loss forms the primary basis of his claim in this litigation. 2
The trial court awarded $7,500.00, noting that the measure of damages is "the delay in obtaining the price of the crop" which was ultimately harvested and sold. The Commissioner's report noted the award was based on inconvenience, interruption of business, and time lost in supervising the situation, as well as the delay in harvesting.
The trial court's approach to damages, based merely on a delay in harvesting the oysters bedded in 1973, is an oversimplification of a complex measurement problem which involves the consideration of numerous factors.
If the oysters had been destroyed, the measure of damages (assuming no permanent damage to the leased property) would simply have been the value of harvested oysters, minus the cost of producing them, as in the case of damage to crops. McCormick, Damages, Ch. 20, p. 486 (1935). The complicating factor that the oysters were not destroyed, but were ultimately harvested and sold, does not justify a conclusion that plaintiff's only damages were delay and inconvenience.
This case is more properly viewed as one of damage to property rather than one of damage to crops. The leased property in Bayou Grand Cheniere, which was a profit producing asset, was temporarily damaged by defendants' torts, and plaintiff's damages should be measured by the cost of restoring the property and the value of the loss of use of the property during the period of repair.
There was no expense in restoring the property to its former condition, since the property was restored by the oysters' purging themselves of the oily taste. However, plaintiff did suffer the loss of use of the leased property for the period of approximately one year that it took for the property to be restored to its former condition, and the value of this loss of use is his proper measure of damages.
Determination of the value of plaintiff's loss of use is far from simple.
Plaintiff had used the leased property constantly since at least 1969, and in every year except one the property produced profits. This record fact is a preliminary indication that, more probably than not, the leased property would have produced profits in 1974 and plaintiff in that year would have reseeded the property for harvesting in 1975, if the property had not been damaged by defendants' torts.
Defendants argue, however, that when plaintiff was unable to harvest and reseed the leased property in 1974, he either used or should have used the time he would have spent harvesting there to plant seed oysters in other areas in order to minimize his loss. The modest judgment of the trial court reflects acceptance of this theory, since plaintiff's "failure to seek other oyster beds" is specifically mentioned in the Commissioner's report.
Defendants' theory of credit for income which was or could have been produced from other property leased by plaintiff must be considered in light of many factors.
This suit was not one for loss of plaintiff's personal capacity to produce income, but one for loss of use of income producing property. Defendants' theory views plaintiff's loss as if it were a partial loss of earning ability, such as that caused by bodily injury, for example, to a plumber. Thus, an injured plumber, who generally earned $500.00 per week, but who earned only $200.00 per week as a telephone solicitor during six weeks he was disabled to work as a plumber by a tort injury to his person, arguably may recover only $300.00 per week for six weeks, or $1,800.00 in loss of earning capacity, although he would have earned $3,000.00 as a plumber during that period, since the tort caused only a partial disability to produce income.
The rationale differs in cases of damage to property. For example, if a person in the real estate rental...
To continue reading
Request your trial
-
Tesvich v. 3-A's Towing Co.
...in a given year or in successive years. Finally, the awards are inconsistent with this court's expressions in Skansi v. Signal Petroleum, 375 So.2d 965 (La.App. 4th Cir.1979). In awarding plaintiffs ten years of lost profits, the trial judge reasoned that plaintiffs already lost seven years......
-
Inabnet v. Exxon Corp.
...13.3 See LSA-R.S. 41:1225.4 LSA-R.S. 56:422.5 LSA-C.C. Art. 56:424.6 LSA-R.S. 56:425.7 LSA-R.S. 56:426-29.8 LSA-C.C. Art. 11.9 375 So.2d 965 (La.App. 4th Cir.1979).10 It should be noted, however, that the court in Sercovich relied extensively on the lower court decision in this matter, Inab......
-
Sercovich v. Chevron U.S.A., Inc.
...due an oyster lessee for damage to the leased beds, and has awarded such restoration costs. See, e.g., Skansi v. Signal Petroleum, 375 So.2d 965, 967 (La.App. 4th Cir.1979); Tesvich v. 3-A Towing Co., 547 So.2d 1106 (La.App. 4th Cir.1989). Recently, in Inabnet v. Exxon Corp., 614 So.2d 336 ......