ELR Citation: ELR 20273
No(s). 82-3059 (5th Cir. Feb 11, 1985)

The court, sitting en banc in a maritime toxic tort case, holds that no recovery is allowed for negligently inflicted economic loss absent physical damage to a proprietary interest. Plaintiff-appellants are various businesses indirectly injured when the Mississippi River Gulf Outlet and surrounding marshes were closed due to the spillage of 12 tons of pentachlorophenol (PCP) from the defendant vessel during a collision.

The court first carefully reviews the development of the requirement of physical injury to a proprietary interest and declines plaintiffs' invitation to either distinguish or overrule the precedent. Though it is true that in Robins Dry Dock, the seminal case, plaintiffs had a contract to use the vessel injured, that makes the Robins rationale all the more applicable. If a contractual connection is too remote to allow recovery, claims like these without even that connection are even more remote. Characterizing defendants' actions as creating a public nuisance is of no assistance to plaintiffs, the court holds. Nuisance is not a separate tort, but only a type of damage. Therefore, the court holds, plaintiffs may no more recover in maritime tort for pure economic losses under a public nuisance theory than under a negligence theory.

The Supreme Court has held that §10 of the Rivers and Harbors Act creates no private right-of-action, and the court holds in a footnote that the Court's reasoning applies to §13 as well. Further, the court holds that the plaintiffs may not avail upon state common or statutory law because the invocation of federal maritime jurisdiction results in the exclusive application of federal admiralty law.

In a concurring opinion, Judge Gee, joined by Chief Judge Clark, notes the problems with courts trying to administer the seemingly infinite claims resulting from a broadscale disaster with mechanisms designed for dealing with finite disputes.

Judge Williams writes a specially concurring opinion to emphasize, as the majority stated in footnote, that the rights of commercial fishermen were not decided in this case. He would have preferred to establish a rule explicitly allowing recovery for those who make a living out of a resource of the water.

Judge Garwood concurs specially to note that there may be rare exceptions to the rigid rule applied by the court.

Judge Wisdom, joined by Judges Politz, Tate, and Johnson, files a wide-ranging dissent. The dissenters would distinguish Robins Dry Dock, and hold that Robins bars a claim only if it is derived solely through contract with an injured party. They would reject the physical harm to a proprietary interest test and, instead, analyze the case under conventional tort principles of proximate cause and foreseeability. In addition, the dissenters would require a plaintiff to assert a "particular damage" that distinguishes him from the general population. Requiring that approximate causation, foreseeability, and particular damage be proven would strike a fairer compromise between dealing with open-ended liability and leaving injured plaintiffs uncompensated.

Four of the dissenters also join in a separate dissent, which points out that the concurring opinions indicate that a majority of the court is unhappy with imposing an unqualified requirement of physical injury to a proprietary interest. These dissenters also argue that the attractiveness to the bench of action by Congress in cases like this should not cause it to deny recompense to plaintiffs, like these, who have suffered real injury.

[Related opinions appear at 14 ELR 20397 & 20521.]

Counsel for Appellant
Gerald T. Gelpi
Gelpi, Sullivan, Carroll & Laborde
430 Notre Dame St., New Orleans LA 70130
(504) 524-9714

Walter J. Leger Jr.
Leger & Mestayer
710 Carondelet St., Third Floor, New Orleans LA 70130
(504) 588-9043

Counsel for Appellee
Walter Carroll Jr.
Terriberry, Carroll & Yancey
2100 Int'l Trade Mart, New Orleans LA 70130
(504) 523-6451

Robert B. Deane
Chaffee, McCall, Phillips, Toler & Yancey
1500 First Nat'l Bank of Commerce Bldg., New Orleans LA 70112
(504) 568-1320

Before CLARK, Chief Judge, WISDOM, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, and HILL, Circuit Judges.