ELR Citation: ELR 21450
No(s). 91-CV-70661-DT (E.D. Mich. Feb 25, 1992)

The court, in applying the bright-line rule for determining tort liability rather than the traditional test, dismisses the economic damages claims brought by parties whose business interests were adversely affected when an accident involving a vessel and a dock blocked commercial navigation through a watercourse channel, and §2702(b)(2)(C) and (E) of the Oil Pollution Act (OPA) does not allow for recovery of the claimants' economic losses. The bright-line rule provides that a claim by a party for the recovery of economic losses from a negligent tortfeasor will only be allowed where the party has suffered physical damage to a proprietary interest as a result of the tortfeasor's negligence. The traditional tort test requires a review of factors such as foreseeability, proximate cause, and remoteness. The court first holds that the bright-line rule for determining tort liability is appropriate in this case, because the alternative, open-ended liability for economic losses could increase the insurance costs for covering such liability to a prohibitive level, and the claimants can insure against such economic losses more readily through loss insurance. Moreover, the bright-line rule of damage to a proprietary interest has the virtue of predictability. Further, the bright-line rule is also applicable to preclude damages for claims of interference with contract claims and increased operating expenses incurred as a result of others' accidents. The court next allows a damages claimant an extension of the time for filing a claim against the vessel and dock owners, because Supplemental Rule F(4) for certain admiralty and maritime claims under the Federal Rules of Civil Procedure provides the court with broad discretion where, as here, the claimant has provided a plausible reason for its untimely claim, namely a lack of actual notice of the limitation action, and no evidence of prejudice to defendants is shown. Finally, the court holds that the OPA §2702(b)(2)(C) and (E), relating to subsistence use and profits and earning capacity, respectively, does not allow for the recovery of the claimants' economic losses. Claimants neither used the river for a subsistence use, which relates to using a natural resource to obtain the minimum necessities of life, nor incurred injury, destruction, or loss to their property to be eligible under the OPA for monetary recovery for loss of profits or impairment of earning capacity.

Counsel for Appellants
John L. Foster, Paul D. Galea
Foster, Meadows & Ballard
3200 Penobscot Bldg., Detroit MI 48226
(313) 961-3234

C. Peter Theut
Butzel Long
150 W. Jefferson St., Ste. 900, Detroit MI 48226
(313) 225-7000