Terre Aux Borufs Land v. J.R. Gray Barge

• Decision Date: 14 November 2001
• Docket Number: No. 2000-CA-2754.,2000-CA-2754.
• Parties: TERRE AUX BOEUFS LAND CO., INC. v. J.R. GRAY BARGE COMPANY, Henry's Marine, Tetra technologies, INC., Zurich insurance Company, ABC Insurance Company, and DEF Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

803 So.2d 86

TERRE AUX BOEUFS LAND CO., INC. v. J.R. GRAY BARGE COMPANY, Henry's Marine, Tetra technologies, INC., Zurich insurance Company, ABC Insurance Company, and DEF Insurance Company.

No. 2000-CA-2754.

Court of Appeal of Louisiana, Fourth Circuit.

November 14, 2001.

COPYRIGHT MATERIAL OMITTED

Benjamin O. Schupp, Sergio J. Alarcon, Charles A. Snyder, Milling Benson Woodward L.L.P., Orleans, LA, Counsel for Plaintiff/Appellee.

Lee M. Peacocke, Salley & Associates, Metairie, LA, Counsel for Defendant/Appellant, Henry's Marine Service, Inc.

Ruth B. Schuster, Robert T. Lemon II, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, LA, Counsel for Defendant/Appellant, Tetra Technologies, Inc.

Brandon E. Mary, Lemle & Kelleher, New Orleans, LA, Counsel for Defendants/Appellants, J.R. Gray Barge Co., and Zurich Ins. Co.

Court composed of Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, Sr., Judge MICHAEL E. KIRBY.

PLOTKIN, Judge.

The salient issue presented by this appeal is whether a landowner is entitled to issuance of an injunction compelling removal of a barge stranded on its property as a result of Hurricane Georges. Defendants, Gray Barge Co. ("Gray"), Zurich Insurance Co. ("Zurich"), Henry's Marine ("Henry's"), and Tetra Technologies, Inc. ("Tetra"), appeal the trial judge's grant of preliminary injunctive relief in favor of plaintiff, Terre Aux Boeufs Land Company, Inc. ("TAB"). For the reasons explained below, we affirm the trial court's judgment in part, reverse in part, and render.

FACTS

Barge RG-7, an unmanned, non-propelled, deck barge used for transportation and storage of construction materials, was owned by Gray Barge Co., who entered into a charter for use of the barge with Henry's on August 28, 1998. Henry's subsequently chartered the barge to Tetra, which used the barge for drilling operations. When Hurricane Georges threatened the Gulf region, Barge RG-7 was moored to the Breton Sound Fuel Dock at Hopedale, Louisiana. As a result of the hurricane, the barge broke from its moorings and became stranded on TAB's marshland property, approximately 1,000 feet from the nearest navigable waterway. Subsequently, Gray Barge Co. claimed a constructive total loss of the barge and was indemnified by its underwriter, Zurich Co. The barge was then abandoned by all defendants.

On September 27, 1999, TAB filed a Petition and Rule to Show Cause in the 34th Judicial District Court for the Parish of St. Bernard against the defendants. TAB set forth five separate causes of action for injunctive relief to compel removal of the barge: (1) a possessory action under La. C.C.P. art. 3663; (2) a pollution action under LSA-R.S. 30:2076 and LSA-R.S. 30:2077; (3) a pollution action under LSA-R.S. 30:2155; (4) a pollution action under LSA R.S. 30:2202 and LSA-R.S. 30:2203; and (5) a general tort liability action under La. C.C. art. 2315, La. C.C. art. 2316, La. C.C. art. 2317, and La. C.C. art. 2317.1. Gray Barge and Zurich Co. responded by filing an Exception of No Cause of Action, which was denied by the trial judge. Gray and its insurer, Zurich Co., filed a cross-claim against Henry's and Tetra. TAB's Motion for Preliminary Injunction came for a hearing on February 28, 2000. Following the hearing, the trial judge entered judgment granting TAB's petition for preliminary injunctive relief against all defendants.

In entering judgment in favor of TAB, the trial judge made the following legal and factual findings.

1. That "[m]aritime jurisdiction extends to this claim despite the fact the barge is no longer in navigable waters and is actually on land" by virtue of the Admiralty Extension Act, 46 U.S.C. Section 740.

2. That the claim was properly maintained in state court pursuant to the Savings to Suitors Clause, 28 U.S.C. 1333, "with federal maritime law being applied."

3. That state substantive law may be used to fill "gaps" in coverage if no maritime law provision controls, provided the state remedies selected do "not make changes in substantive law." Miller v. American Dredging Co., 595 So.2d 615 (La.1992), aff'd, American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994).

4. That "the present circumstances of this case constitute a gap in maritime law which is filled by various state remedies. Specifically, plaintiff's claim for injunctive relief for removal of the barge from his land is not controlled by federal maritime law."

5. That TAB is entitled to peaceful possession of its property under Louisiana law and that it could therefore assert an action for removal of the barge.

6. That application of state law remedies do not make changes to the substantive federal maritime law.

7. That the presence of the barge on TAB'S property constitutes an unintentional trespass under Louisiana state law.

8. That each defendant is liable for removal of the barge because they were "engaged in the commercial operation of the barge for a profit."

9. That the Federal Wreck Act, 33 U.S.C. Section 409, could be applied to this case by analogy because "[i]t is clear that there is no basis in maritime law for any distinction between a vessel wrecked on land or water."

10. That the "Act of God" defense applies to this case to relieve the defendants of liability "for damages which occurred in the placement of the barge on plaintiffs immovable property."

11. That the defendants have a duty to remove the barge despite the validity of their "Act of God" defense because the 1986 amendments to the federal Wreck Act "create[] a duty on the part of the owner, operator/lessee of a wrecked vessel to remove a wreck at their cost regardless of the cause of the wreck." (Emphasis in original.)

12. That a valid bareboat charter existed between Gray and Henry's, thus Henry's was the owner pro hac vice, and that Henry's then subleased the barge to Tetra, but that the charter terminated due to the doctrines of frustration and impossibility when the barge was grounded.

The parties raise a number of issues on appeal, including the following:

1. Application of Louisiana state law remedies in this admiralty case

2. Application of the traditional "Act of God" defense

3. Application of the federal "Wreck Act"

4. Application of Louisiana trespass law

5. Application of Louisiana procedural law relative to possessory actions

6. Status issues between the various defendants

CHOICE OF LAW

The United States Constitution, Art. III, § 2, cl. 1 provides that federal judicial power "shall extend ... to all Cases of admiralty and maritime Jurisdiction." However, admiralty and maritime plaintiffs are allowed to bring suits in state court pursuant to the Saving to Suitors Clause, 28 U.S.C. 1333, which states as follows:

That the [federal] district courts shall have original jurisdiction, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

The United States Supreme Court has explained that the entitlement or "`right of a common-law remedy,' so saved to suitors, does not ... include attempted changes by the states in the substantive admiralty law, but it does include all means other than proceedings in admiralty which may be employed to enforce the right or to redress the injury involved." Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 44 S.Ct. 274, 68 L.Ed. 582 (1924). Generally, "[a] maritime claim brought in the common law state courts .. . . is governed by the same principles as govern actions brought at admiralty, i.e., by federal maritime law." Powell v. Offshore Navigation, 644 F.2d 1063, 1065 n. 5 (5th Cir.1981). However, the Louisiana Supreme Court stated as follows in Miller v. American Dredging Co., 595 So.2d 615 (La.1992), aff'd, American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994):

[I]t is well settled that a state court, having concurrent jurisdiction with the federal courts as to in personam admiralty claims, is free to adopt such [state] remedies, and to attach to them such incidents as it sees fit so long as it does not attempt to make changes in the substantive maritime law."

Id at 617-18.

The Louisiana Supreme Court provided further guidance for deciding whether federal or state law controls in Milstead v. Diamond M Offshore, Inc., 676 So.2d 89 (1996), as follows:

[T]he key consideration in determining whether state laws apply in maritime cases is uniformity. Nonetheless, this demand for uniformity is not inflexible and does not totally preclude application of state laws . . . . [T]he decision whether to apply a state rule must be based upon a balancing of state and federal interests."

Id at 94. The Milstead court also noted that "[a]nother consideration ....that has recently been given significant credence by the United States Supreme Court is the procedural/substantive distinction." Milstead, 95-2446 at 9, 676 So.2d at 94, quoting American Dredging Co., 510 U.S. at 457, 114 S.Ct. 981 (Souter, J., concurring). A law that either establishes new rules, rights and duties or changes existing ones is substantive, while one that prescribes a method for enforcing a substantive right and relates to the form of the proceeding or the operation of the laws is procedural. Id. at 95. Generally, state procedural laws may be applied to admiralty cases, while substantive laws may be applied only if they are not inconsistent with substantive maritime law. Moreover, "Louisiana courts may afford a remedy not traditionally found in the maritime law, provided that the remedy neither conflicts with substantive maritime law nor impermissibly interferes with the requirement of uniformity." Green v. Industrial Helicopters, 593 So.2d 634, 639 (La.1992). Thus, the trial judge was allowed to apply Louisiana law so long as the above principles were not violated.

ACT OF GOD DEFENSE

Federal Admiralty/Maritime law

The...