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The United States Court of Appeals for the Federal Circuit recently issued a significant opinion in a case in which a takings claim was asserted to redress Hurricane Katrina-related flood damage.  On April 20, 2018, it reversed a decision of the United States Court of Federal Claims (“Claims Court”), which had held the U.S. Army Corps of Engineers liable under the Tucker Act for flood damage to the Plaintiffs’ properties.

In 1968, the Corps completed construction of the Mississippi River Gulf Outlet (“MRGO”) in New Orleans.  The purpose of this navigation channel was to increase commerce between the port of New Orleans and the Gulf of Mexico.  Around the same time, Congress authorized funding for flood control through the Lake Pontchartrain and Vicinity Hurricane Protection Project (“LPV”).  This project was instituted to reduce the risk of flooding in New Orleans, and it resulted in the construction of levees and floodwalls along the banks of MRGO.
Continue Reading Federal Circuit Holds U.S. Army Corps of Engineers Not Liable for Hurricane Katrina Flood Damage

I attended a great meeting yesterday at the Port of New Orleans hosted by the FBA Admiralty Law Committee. Here are some bullets and takeaways, which are certainly of interest to anyone in the maritime industry along the lower Mississippi River.  I am especially grateful that the following people were able to speak with us:

  • Patricia Krebs, Chair of the Admiralty Law Committee of the New Orleans Chapter of the Federal Bar Association
  • Robert “Rusty” Barkerding, Jr., Chairman of the Port of New Orleans Board of Commissioners
  • Ronald Wendel, Vice President- Finance & Administration (CAO/CFO) of the Port of New Orleans
  • Aaron C. Smith, President & CEO of OMSA (Offshore Marine Service Association)

It’s wonderful to have people at such a high level take time out of their day to share the latest and greatest of what’s going on locally in our industry.
Continue Reading FBA Provides Update on Maritime Developments in New Orleans and the Lower Mississippi River Region

The stage appears to be set for intervention by the United States Supreme Court following the Ninth Circuit’s recent panel decision in Batterton v. Dutra Group, No. 15-56775 (9th Cir. Jan. 23, 2018).  In Batterton, the Ninth Circuit expressly disagreed with the Fifth Circuit in holding that an injured seaman may recover punitive damages in a claim for unseaworthiness against a vessel owner under the general maritime law.  Compare McBride v. Estis Well Service, 768 F.3d 382 (5th Cir. 2014) (en banc).  The circuit split, which follows disagreement among the lower courts, hinges on differing views of the impact of the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990) on this area of law.
Continue Reading Ninth and Fifth Circuits Split on Issue of Punitive Damages Under Maritime Law

In Warren Lester, et al. v. Exxon Mobil Corp., et al., No. 14-31383, ___ F.3d ___ (5th Cir. 1/9/2018), the U.S. Fifth Circuit Court of Appeals issued an opinion addressing two issues of first impression involving the Class Action Fairness Act of 2005 (“CAFA”).[1] A full copy of the opinion can be accessed here.
Continue Reading U.S. Fifth Circuit Issues CAFA Opinion in Mass Action Addressing Two Issues of First Impression

In a highly anticipated ruling, the United States Fifth Circuit Court of Appeals issued its en banc decision in In re: Larry Doiron, Inc., No. 16-30217 (5th Cir. Jan. 8, 2018).  The case called upon the court to determine whether a contract for performance of specialty services to facilitate the drilling or production of oil and gas on navigable waters is maritime in nature.  In ruling that the particular contract at issue in the case was non-maritime, the Fifth Circuit took the significant step of streamlining and re-framing the analysis for maritime contracts generally.
Continue Reading Highly Anticipated En Banc Fifth Circuit Opinion Reframes Maritime Contract Analysis

In a decision by the Louisiana Board of Tax Appeals, Liskow & Lewis attorneys Robert Angelico, Jim Exnicios, Cheryl Kornick, RJ Marse, and Jeff Birdsong obtained a ruling rejecting attempts by the Louisiana Department of Revenue to increase the amount of severance taxes due on crude oil produced in Louisiana.  The Department of Revenue targeted dozens of producers, including many smaller producers, with audits and assessments attempting to impose severance taxes on market center or index prices rather than the value of the crude oil in the field. 
Continue Reading Liskow Lawyers Obtain Win for Oil and Gas Industry in Severance Tax Litigation

In September 2017, President Donald Trump nominated Kyle S. Duncan and Judge Kurt Engelhardt to the United States Fifth Circuit Court of Appeals.  Duncan is currently a partner at Schaeer Duncan LLP in Washington D.C. while Judge Engelhardt serves as the Chief Judge for the U.S. District Court for the Eastern District of Louisiana.

Just recently, two industry groups in Louisiana approved of President Trump’s nominees.  The Louisiana Association of Business Industry (“LABI”) and the Louisiana Oil and Gas Association (“LOGA”) officially endorsed Duncan and Chief Judge Engelhardt in November 2017.  Both LABI and LOGA are strong advocates for developing incentives and legislation that support economic growth in Louisiana, especially through the production of oil and gas. 
Continue Reading LABI and LOGA Endorse President Trump’s Nominations for the United States Fifth Circuit Court of Appeals

Case:    United States v. American Commercial Lines, L.L.C., No. 16-31150, ___ F.3d ___ (5th Cir. 11/7/17).

Factual Background

In July of 2008, nearly 300,000 gallons of oil spilled into the Mississippi River in New Orleans when a tugboat towing an oil-filled barge veered across the river into the path of an ocean-going tanker.  American Commercial Lines (“ACL”) owned the tug MEL OLIVER, and bareboat chartered its tug to DRD Towing.  DRD then operated the MEL OLIVER under a time charter to ACL.  At the time of the collision, the MEL OLIVER, which was pushing ACL’s barge DM-932 fully laden with oil, was operating without a captain who had effectively abandoned the vessel several days earlier.  The Steersman left in charge was allegedly sound asleep at the wheel at the time of the collision as he had been working for nearly 36 straight hours.  The TINTOMARA, a tanker, collided with the DM-932, causing the barge to break away and ultimately sink in the Mississippi River resulting in the spill of approximately 300,000 gallons of oil into the River.  As owner of the leaking barge, ACL was deemed the responsible party under the Oil Pollution Act of 1990 (“OPA ’90”).
Continue Reading U.S. Fifth Circuit Affirms $20 Million Judgment Against Barge Owner as Responsible Party Under the Oil Pollution Act of 1990

The Louisiana Legislature passed “Act 312,” La. R.S. 30:29, in 2006 to provide a procedure for ensuring that amounts awarded to remediate environmental damage are actually spent on remediation.  Act 312 sets forth a multi-step scheme that is triggered once a party is found responsible for environmental damage, culminating with Department of Natural Resources (“DNR”) approving a plan “to evaluate or remediate” the environmental damage. La. R.S. 30:29(C)(2)(a). Thereafter the trial court “shall adopt the plan approved by the [DNR] unless another party proves by a preponderance of the evidence that another plan is more feasible,” id. 30:29(C)(5). 
Continue Reading Third Circuit Affirms Trial Court’s Refusal to Adopt DNR’s Most Feasible Plan in Sweet Lake Land & Oil Co. v. Oleum Operating Company

Case:  Warren v. Shelter Mutual Ins. Co., No. 2016-C-1647 (La. 10/18/17), ___ So. 3d ___.

Factual Background

A recreational boating accident occurred on navigable inland waters of Louisiana in May of 2005 resulting in the death of a 22-year old passenger. While the boat was on plane, the hydraulic steering system manufactured by defendant Teleflex suddenly failed due to fluid loss, causing the boat to turn violently with the motor going into a free spin (known in the industry as a “J-hook” or “kill spin”). Decedent and other passengers were ejected from the boat, and thereafter, the boat continued to spin around with its propeller striking decedent 19 times, resulting in death.

Decedent’s parents[1] filed suit under general maritime law and products liability for the wrongful death of their son, and sought punitive damages under the general maritime law. Their claims against Teleflex, a sophisticated boating industry manufacturer, centered on its failure to warn unsuspecting users of the inherent danger in its product—that a very small loss of fluid would result in loss of steering and potentially cause ejection and death.

Following trial,[2] the jury rendered a verdict in favor of the Plaintiff and against Teleflex for failure to warn, awarding compensatory damages of $125,000 and punitive damages of $23 million. Teleflex appealed the verdict, and the Louisiana Third Circuit Court of Appeal affirmed.
Continue Reading Louisiana Supreme Court Holds Punitive Damages Are Available Under General Maritime Law Against Products Liability Defendant