MARTIN L.C. FELDMAN, District Judge.
Before the Court are three motions by the United States: (1) motion for summary judgment on liability; (2) motion to dismiss or alternatively to sever and stay Southern Scrap's counterclaims; and (3) motion for summary judgment and motion in limine regarding actual wreck removal costs. For the reasons that follow, the motion for summary judgment on liability is GRANTED; the motion to dismiss or alternatively sever and Stay Southern Scrap's counterclaims is DENIED in part and GRANTED in part; and the motion for summary judgment and motion in limine is GRANTED in part and DENIED in part.
This case arises from the well-known breakaway and sinking of Southern Scrap's drydock in the Industrial Canal during Hurricane Katrina, and its subsequent removal by the United States Army Corps of Engineers.
Southern Scrap owns a metal recycling facility in New Orleans, which is located at
Sometime after August 16, 2005, during the course of cutting the drydock into pieces for recycling, Southern Scrap had disconnected the mooring lines and turned the drydock around. On Friday, August 26, 2005, with Hurricane Katrina in the Gulf of Mexico, Southern Scrap personnel began preparations for the storm. Grant Judy (Southern Scrap's supervisor of demolition) was instructed to reattach the four anchor chains to prepare the drydock for 6 to 10 feet of tides. Judy passed each of the four anchor chains through a hole cut into the drydock's watertight bulkhead, looped each chain around a structural beam within the drydock's framing, brought each chain back out through another hole cut into the drydock's bulkhead, and then shackled each chain to itself using a 100-ton shackle.
On Monday, August 29, 2005, Hurricane Katrina made landfall in southeast Louisiana as a Category 3 hurricane with sustained winds of 127 miles per hour. Katrina produced a storm surge up to 17 feet on Southern Scrap's property at the junction of the Industrial Canal and MRGO;
On September 3, 2005, the Corps hired Boh Bros. to clear all obstructions from Southwest Pass and the Industrial Canal, including the Southern Scrap drydock, for a fixed price not to exceed $500,000. Several days later, the Corps contacted Southern Scrap's president, Joel Dupre, and asked him to remove the drydock (which, at the time, still had a barge on top of it). Dupre told the Corps that Southern Scrap could not do so because it did not have access to its drydock given the complete lockdown of New Orleans.
In mid-September 2005 the U.S. Army Corps of Engineers undertook to remove the drydock: Boh Bros. Construction Co. and its subcontractor, Bisso Marine, began salvaging the drydock. Two and a half months later, removal was completed on December 2, 2005.
On April 11, 2006, Southern Scrap filed a limitation proceeding, seeking to limit its liability, pursuant to the Limitation of Liability Act, 46 U.S.C. § 30305, to the post-casualty value of the drydock.
In December 2006, the United States requested that the Court lift its injunction so that it could pursue a separate Wreck Act claim against Southern Scrap. In April 2007 the Court granted the United States' request. In re Southern Scrap Material Co., L.L.C., No. 06-1860, 2007 WL 1234995 (E.D.La. Apr. 26, 2007). Southern Scrap appealed. On August 25, 2008 the Fifth Circuit affirmed the Court's ruling, expressly holding that the United States' Wreck Act claim was not subject to the Limitation Act. In re Southern Scrap Material Co., LLC, 541 F.3d 584, 595 (5th Cir.2008). The Fifth Circuit further held that the Wreck Act afforded the government the right to recover its actual costs of removing the sunken drydock, without alleging that Southern Scrap negligently caused its sinking. Id. at 592. Southern Scrap appealed the ruling to the Supreme Court, which denied certiorari on March 30, 2009. Southern Scrap Material Co., LLC v. U.S., ___ U.S. ___, 129 S.Ct. 1669, 173 L.Ed.2d 1036 (2009).
Two years after Katrina, on August 29, 2007 Southern Scrap asserted a counterclaim against the United States, alleging that the United States, through the Corps, had negligently designed, constructed, inspected, repaired and maintained the MRGO, resulting in an increase of Hurricane Katrina's storm surge. Southern Scrap asserts that the storm surge inundated its facilities and caused the drydock to break away. In its answer, the United States raises several defenses challenging the existence of this Court's subject matter jurisdiction over Southern Scrap's counterclaim.
On November 28, 2008 the United States filed its Wreck Act complaint against Southern Scrap, asserting that it is entitled to seek recovery for the costs of removing Southern Scrap's drydock from the Industrial Canal. On December 23 the case was transferred to this Court, and it was consolidated with Southern Scrap's limitation proceeding, at the request of the parties.
On February 23, 2009 Southern Scrap answered the United States' complaint, and filed a counterclaim. In its answer, Southern Scrap raised 12 defenses, including that the drydock breakaway was caused by an Act of God and that the breakaway was solely due to the negligence of the United States in its design, engineering, construction, repair, and maintenance of the MRGO. Southern Scrap also challenges the reasonableness of the wreck removal costs, and asserts that the United States should have accomplished removal of the drydock pursuant to the Stafford Act, 42 U.S.C. § 1521. Southern Scrap admits that the drydock was in navigable waters, but denies that
Meanwhile, as this litigation was proceeding in this Court, the case captioned In Re Katrina Canal Breaches Consolidated Litigation (Robinson), Civil Action No. 05-4182, was proceeding before Judge Duval. In that case, the plaintiffs sought monetary awards based on damages sustained during Hurricane Katrina, allegedly as a result of the existence of the MRGO.
In considering the government's defenses, the Robinson court restated its earlier decision denying applicability of the Flood Control Act, and ruled that the due care exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), did not apply. Id. Regarding the discretionary function exception, the court held that the Corps was immune from damages arising from the design and construction of the MRGO, but that the exception did not apply to the Corps' maintenance of the channel. Id. The court awarded damages to all plaintiffs except Norman and Monica Robinson, whose home is located in the New Orleans East Polder. Id. Denial of the Robinson's claim for damages was based on the court's earlier conclusion that it was not negligent for the Corps to refrain from constructing a surge protection barrier, and its conclusion that funneling of the hurricane surge was inherent in the design of the MRGO.
Following that ruling, the United States and the plaintiffs requested a new trial, but the court denied the motions. On March 25, 2010 the parties noticed their appeals to the Fifth Circuit U.S. Court of Appeals. That crucial appeal is presently pending.
In this case, the United States now seeks the following relief: (1) summary judgment on liability for wreck removal expenses; (2) dismissal of Southern
Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50, 106 S.Ct. 2505 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir.1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987). Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
The purpose of the Rivers and Harbors Act is "to prevent obstructions in the Nation's waterways." Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). The coverage of the Rivers and Harbors Act is broad, and its principal beneficiary is the United States government. Id. The Wreck Act, which is part of the Rivers and Harbors Act and includes 33 U.S.C. §§ 409, 411, 412, 414 and 415, empowers the United States to remove wrecks from its navigable waters in order to "protect[] other vessels plying the same waters" as the sunken vessels. United States v. Raven, 500 F.2d 728, 732 (5th Cir.1974).
Section 409 of title 33 of the United States Code,
Id. at 588. The 1986 amendments to the Wreck Act, which removed the phrase "voluntarily or carelessly" from the first clause of Section 409, the Fifth Circuit has also observed, "expand[ed] the potential for vessel owners' liability without fault for governmental wreck removal costs." Id. at 591; see also In re Barnacle Marine, 233 F.3d 865, 868 n. 6 (5th Cir.2000) ("In 1986, nineteen years after Wyandotte, Congress changed § 409's standard for liability from negligence to strict liability."). "[T]he new §§ 414(b) and 415(c) now permit the United States to hold a non-negligent vessel owner personally liable for the total amount of governmental wreck removal costs when it fails to remove its sunken vessel as required by the third clause of § 409." Southern Scrap, 541 F.3d at 594.
Accordingly, the Fifth Circuit, in affirming this Court's ruling, underscored that "the United States can state a personal liability claim against Southern Scrap under the Wreck Act for the recovery of its actual cost of removing the drydock from the Industrial Canal without alleging that the vessel owner negligently caused the sinking." Southern Scrap, 541 F.3d at 592.
Further, in holding that the Limitation Act does not apply to limit the United States' recovery of wreck removal costs under the Wreck Act, the Fifth Circuit repeated that "the new §§ 414(b) and 415(c) now permit the United States to hold a non-negligent vessel owner personally liable for the total amount of governmental
Sections 414 and 415 authorize the United States to remove vessels sunken in navigable waterways and to recover removal costs when the responsible party fails to prosecute immediate removal diligently as required by the third clause of Section 409. Section 415(a) authorizes the government through the Secretary of the Army, in an emergency, to take immediate possession of a sunken subject that endangers navigation in any navigable waterway of the United States, and to remove or destroy the sunken subject to eliminate the obstruction.
Section 415(c) provides that the owner, lessee, or operator of a sunken vessel shall be liable to the government for the costs of removal on an emergency basis under § 415(a), except that in such case, the removal costs also shall include administrative expenses.
The United States contends that it has stated a claim under the Wreck Act, given that there is no dispute that Southern Scrap was the sole owner of the drydock; no dispute that the drydock broke free of its moorings and sank in the Industrial Canal (a navigable waterway); that the drydock was a hazard to navigation, which had to be removed; that the Corps contacted Southern Scrap and asked it to remove its drydock from the Industrial Canal; that Southern Scrap responded it would not be able to immediately remove the drydock; that the Corps hired Boh Bros. to remove the wreck, which took three months and cost the Corps in excess of $9 million; and that Southern Scrap has refused to pay. Southern Scrap does not contest that the Wreck Act imposes liability without fault or that the government has not stated a claim under the Wreck Act. However, Southern Scrap raises various defenses to the United States' claim. The parties dispute whether Southern Scrap may raise defenses based on Act of God, government fault, or the Stafford Act.
Southern Scrap insists that it has a right to raise Act of God as a defense to the government's statutory wreck removal claim. Southern Scrap seeks refuge from the statutorily imposed strict liability by suggesting that, while the Wreck Act itself does not require a showing of fault, there must still be some element of causation, some causal contribution from the wreck owner.
Without burdening this decision with an overdose of theory, Hurricane Katrina may well be considered to have been an Act of God. See, e.g., John W. Stone Oil Distributor, L.L.C. v. Bollinger Shipyards, Inc., No. 06-2377, 2007 WL 2710809, at *6 (E.D.La. Sept. 12, 2007); In re Marine Leasing Servs., 471 F.2d 255, 257 (5th Cir.1973)(per curiam)(burden of proving that Hurricane Betsy was an Act of God which human skill and precaution could not have prevented was on defendants). One invoking Act of God as a defense must prove not only that the weather was heavy but also that it "took reasonable precautions under the circumstances as known or reasonably to be anticipated." In re United States (Dammers & Van der Heide Shipping & Trading (Antilles), Inc. v. Steampship Joseph Lykes), 425 F.2d 991 (5th Cir.1970).
Southern Scrap points out that the Wreck Act does not expressly preclude an Act of God defense. But the Wreck Act does not expressly include an Act of God defense either. Indeed, unlike the Wreck Act, several maritime statutes do include Act of God as an available defense. See, e.g., Carriage of Goods by Sea Act, 46 U.S.C. § 30706(b)(2); the Oil Pollution Act, 33 U.S.C. § 2703(a)(1); the National Marine Sanctuaries Act, 16 U.S.C. § 1443(a)(3)(A); the Park System Resource Protection Act, 16 U.S.C. § 19jj-1 (c)(1).
The Court's attention has not been drawn to any authority after the 1986 amendments in which Act of God has been applied in defense of a Wreck Act claim. Under today's Wreck Act, the owner of a wreck sunk in navigable waters has a clearly expressed duty, without regard to fault, both to mark and remove the wreck. Because fault is irrelevant to a Wreck Act claim, Southern Scrap cannot be excused from liability by an Act of God because the statute imposes strict liability; strict accountability. In fact, as the government points out, the Fifth Circuit and one commentator have suggested that Act of God is not available in defense of a statutory duty, such as marking or removing a wreck. See In re Marine Leasing Servs., 471 F.2d 255, 257 (5th Cir.1973) (per curiam);
Finally, to accept Southern Scrap's argument would ignore and undermine the clear language of the Act and would shift responsibility for removing wrecks to the United States, contrary to the purpose of the Wreck Act. Indeed, if the Court simply accepted that Hurricane Katrina was an Act of God that caused thousands of vessels to escape their moorings and that such a defense could be raised in defense of post-Katrina wreck removal claims, then (accepting Southern Scrap's argument) the United States would be responsible for removing and funding the removal of all wrecks from navigable waterways anytime there was a hurricane.
Southern Scrap further suggests that disputed issues of fact concerning its Act of God defense preclude summary judgment on liability.
Southern Scrap next seeks to defend this wreck removal claim by pointing to the Corps' negligence with respect to the MRGO; negligence that created the massive storm surge, which caused the drydock to breakaway.
The government counters that, even if sole government fault is available as a defense to a Wreck Act claim, Southern Scrap cannot avail itself of the sole government fault defense because other credible and possible causes for which the government is not responsible may have contributed to the drydock's breakaway; only sole government fault could possibly be raised as a defense to a wreck removal claim. The Court agrees.
To repeat, the Wreck Act is a liability without fault statute. In re Barnacle Marine Mgmt, Inc., 233 F.3d 865, 868 n. 6 (5th Cir.2000). Thus, as the Fifth Circuit, without hesitation, has held in Southern Scrap I, "the United States can state a personal liability claim against Southern Scrap under the Wreck Act for the recovery of its actual cost of removing the drydock from the Industrial Canal without alleging that the vessel owner negligently caused the sinking." Southern Scrap, 541 F.3d at 595.
Because the United States' Wreck Act claim against Southern Scrap is one of strict liability, contributory negligence is not available as a defense. See United States v. Tug Colette Malloy, 507 F.2d 1019, 1022 (5th Cir.1975)("Garden-variety contributory negligence is not ordinarily deemed a defense to strict liability, and we do not believe that such fault should be a defense in this strict-liability admiralty suit [under Section 408]."); see also Arkansas River Co. v. United States, 947 F.Supp. 941 (N.D.Miss.1996)(noting that the only defense to a claim under the Rivers and Harbors Act is the "sole cause defense"); United States v. The Tug Rebel, 893 F.Supp. 940 (D.Ore.1995)("This court adopts the reasoning of [the Sixth Circuit in Chotin] and the holding of the Courts of Appeals in the Sixth, Seventh, and Eighth Circuits that preclude the application of general provisions of comparative negligence to this action under the Rivers and Harbors Act"). If, however, the government could be shown to be solely at fault in causing the accident, a defense based on the government's sole fault might be available. See id. ("[W]e have no doubt that if the tug had shown the gateman to be solely at fault in causing the accident a defense would have been established"); United States v. Republic Marine, Inc., 829 F.2d 1399, 1406 (7th Cir. 1987)("We hold that section 412 [of the Rivers and Harbors Act] does not make a vessel liable for damage that occurs entirely due to the fault of the government.").
Southern Scrap has provided no support for its theory that it can escape liability for anything less than sole government fault. And Southern Scrap cannot credibly argue that the record supports its theory that the Corps' faulty design, construction, maintenance and operation of the MRGO was the sole cause of the drydock's breakaway or of its own failure to remove the
The United States next contends that the Stafford Act is not available as a defense to its Wreck Act claim. The Court agrees. The dispute about this is not particularly intense.
On August 29, 2005, President George W. Bush declared a major disaster in Louisiana under the Stafford Act, 42 U.S.C. §§ 5121-5208, triggering implementation of federally-funded disaster relief programs. The Stafford Act authorizes the Federal Emergency Management Agency to direct federal agencies to "provide assistance essential to meeting immediate threats to life and property resulting from a major disaster." Id. § 5170b(a). The purpose of the Stafford act is "to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damages which results from disasters." Id. § 5121(b). Among other forms of assistance, FEMA is authorized to direct agencies or to make grants to state or local governments to perform removal of debris from public and private land. Id. § 5173.
The Stafford Act contains a discretionary function exception, which "preclude[s] judicial review of all disaster relief claims based upon the discretionary actions of federal employees." St. Tammany Parish, ex rel. Davis v. Federal Emergency Management Agency, 556 F.3d 307, 318 (5th Cir.2009)(quoting Rosas v. Brock, 826 F.2d 1004, 1008 (11th Cir.1987)). Thus, the decision of whether and how much to commit Stafford Act funds is discretionary, and the provisions granting FEMA authority to fund debris removal from private property are cast in discretionary terms. See St. Tammany Parish, 556 F.3d at 324 (noting that the Stafford Act contains a discretionary function exception to governmental liability that is nearly identical to the one contained in the Federal Tort Claims Act). Federal regulations permit FEMA to provide assistance for removing eligible debris, "but they do not mandate assistance even where that eligibility criterion is met." Id. (citing 44 C.F.R. § 206.224(a)); see also Sunrise Village Mobile Home Park v. Phillips & Jordan, Inc., 960 F.Supp. 283, 286 (S.D.Fla. 1996) ("The authority [regarding debris removal under the Stafford Act] clearly leaves room for agency judgment on which property should be cleared, whether to include private property in the cleanup, and whether to use federal instrumentalities
Accordingly, claims for Stafford Act funding of debris removal are barred by the discretionary function exception to the Stafford Act, 42 U.S.C. § 5148. See St. Tammany Parish, 556 F.3d at 326 (dismissing Parish's claims for funding of dredging to remove sediment in canals deposited by Hurricane Katrina, because FEMA's decisions are protected by the discretionary function exception); see also Sunrise Village, 960 F.Supp. at 286-287 (claims challenging government's decisions of when, where, and how to remove debris after Hurricane Andrew were barred by the discretionary function exception). Southern Scrap's defense based on the Stafford Act is likewise barred.
The United States next asks the Court to dismiss, or to alternatively sever and stay, Southern Scrap's counterclaim. In its counterclaim, Southern Scrap asserts that the Corps' negligent design, construction, maintenance and operation of the MRGO magnified Hurricane Katrina's storm surge in the Industrial Canal and caused the drydock to escape its moorings. By its counterclaim, Southern Scrap seeks to offset its liability to the Corps and others arising from the escape of the drydock, and also seeks to recover for damage to Southern Scrap's property, which it says was caused by the increased storm surge produced by the MRGO.
The United States first seeks to dismiss Southern Scrap's counterclaim for lack of subject matter jurisdiction because the United States has not waived sovereign immunity. Southern Scrap counters that its counterclaim arises out of the same transaction or occurrence as the United States' Wreck Act claim, and thus the United States waived immunity for its compulsory counterclaim, and further that its counterclaim falls under the waiver of immunity statutorily granted by the Federal Tort Claims Act, which waives sovereign immunity for suits against the United States for tort damages.
"[A] defendant is either compelled by [Federal Rule of Civil Procedure] 13(a), or permitted by 13(b), to counterclaim against the sovereign within the limits to which the sovereign immunity has been given up by the United States." Frederick v. United States, 386 F.2d 481, 488 (5th Cir.1967). The United States cannot be sued, however, unless it specifically consents to be sued, either by statutory consent, or by instituting a suit to which a defendant may plead matters in recoupment. See United States v. Shaw,
In Frederick, the United States sued to recover an amount due from a guarantor of a note. Frederick, 386 F.2d at 483. The Fifth Circuit considered whether the guarantor of the note could bring a counterclaim against the United States based on alleged torts associated with the government's handling of the property securing the debt. Id. at 487. The Fifth Circuit held that the counterclaim arose from the same transaction or occurrence as the guaranty, but explained that there were limits on the defendant's ability to assert a counterclaim against the United States:
Id. at 488 (internal citations omitted). Thus, to be considered a claim for recoupment, as opposed to setoff, a counterclaim must arise from the same transaction or occurrence as the government's claim, must seek relief of the same form or nature as that sought by the government, and must not exceed the relief sought by the government. See id. at 488 (citing cases and noting that "attempts by defendants to seek affirmative relief which was not to reduce or extinguish the government's recovery but to establish an independent right to recovery from the government" were not considered claims for recoupment).
Specifically, Southern Scrap asserts that the design and construction of the MRGO was flawed, causing a funneling effect for storm-driven surges from the Gulf of Mexico, which significantly increased storm surge volume and force as it traveled through St. Bernard Parish and Orleans Parish to the Industrial Canal and Lake Ponchartrain. The funneling effect of the MRGO, Southern Scrap contends, resulted in substantial forces being exerted against levees and spoil banks in Orleans and St. Bernard Parishes. Southern Scrap further contends that the Corps also failed to properly maintain the MRGO and failed to remove silt to the 36 foot project depth, which increased the funneling effect of the waterway into the Industrial Canal. According to Southern Scrap, the unprecedented storm surge created by Katrina and the Corps' defective design, construction, inspection, repair, and maintenance of the MRGO (and resulting loss of wetlands) struck Southern Scrap's property, severely damaging its facility and causing the drydock to escape its moorings and partially sink in the Industrial Canal near the Florida Avenue Bridge.
The government insists that Southern Scrap's counterclaim fails all three elements of an action for recoupment because (1) the Wreck Act claim and the MRGO counterclaim did not arise from the same transaction or occurrence; (2) the counterclaim is of a different "form or nature" than that of the United States'; and (3) Southern Scrap's demand exceeds the United States' claim for wreck removal expenses. The Court agrees.
The United States filed its suit to recover its expenses incurred in removing Southern Scrap's drydock from navigable waters; the wreck removal took place during the last few months of 2005. Southern Scrap's counterclaim, on the other hand, is based on the design and construction of the MRGO, which occurred in the 1950s and 1960s, and the maintenance and repair of the MRGO, which occurred from the date of construction until the project was de-authorized in June 2008. The occurrence
Moreover, the United States' Wreck Act claim is in the nature of restitution, while Southern Scrap's counterclaim is one arising out of tort. Indeed, Southern Scrap seeks to recover damage to its facility caused by the storm surge. In this regard, Southern Scrap seeks to recover from the government based on the government's negligence; this right to recover is independent of the government's statutory right to recover wreck removal costs, which arises from Southern Scrap's strict duty to remove its wreck from navigable waters. Also, the United States' claim arises under admiralty jurisdiction, while Southern Scrap's claims for property damage to its facility do not. The nature of the issues and the evidence that will be necessary to prove the claims are also different: the United States must prove that the drydock was sunk in navigable waters; it was owned by Southern Scrap; Southern Scrap refused to remove the wreck; the United States removed the wreck; and the actual removal expenses were $9.3 million. On the other hand, Southern Scrap's case will focus on the Corps' design, construction, maintenance, and repair of the MRGO, and the impact these actions may have had on the storm surge at the drydock facility. Different evidence and expert witnesses will be used; there will be little evidentiary and legal theory overlap between the two cases.
Finally, Southern Scrap's demand for $27,217,603 in damages arising from its counterclaim far exceeds the United States' claimed $9,295,677 in wreck removal damages. See United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940) (a claim for recoupment may not exceed the principal amount claimed by the United States); Frederick, 386 F.2d at 488 (a counterclaim sounding in recoupment does not seek to recover more than the amount the government seeks to recover); United States v. Livecchi, 605 F.Supp.2d 437, 450 (W.D.N.Y.2009)(Recovery under a recoupment counterclaim may not exceed the principal amount claimed by the United States). Clearly Southern Scrap seeks affirmative relief beyond reducing or extinguishing the government's recovery.
The Court finds that Southern Scrap's counterclaim does not arise from the same transaction or occurrence as the United States' Wreck Act claim, that it is not of the same kind and nature as the United States' claim, and that it exceeds the amount claimed by the United States. Accordingly, Southern Scrap's counterclaim is not a compulsory counterclaim for recoupment and, thus, the United States did not effect a limited waiver of sovereign immunity as to the counterclaim.
Southern Scrap contends that its counterclaim clearly arises under the law of negligence and, as such, its claim falls under the waiver of immunity statutorily granted by the Federal Tort Claims Act,
28 U.S.C. § 1346(b). Southern Scrap argues that, because its counterclaim arises under the law of negligence, the sovereign immunity waiver of the FTCA applies.
Even so, the government answers, two exceptions to the statutory waiver of sovereign immunity shield the United States from FTCA liability: the due care exception and the discretionary function exception. Section 2680(a) provides:
28 U.S.C. § 2680(a). The "due care" exception, which is the first part of Section 2680(a), immunizes the Government from suit with respect to claims based on the execution of a statute or regulation and requires "for its application that the actor have exercised due care." In re Katrina Canal Breaches Litig. (Robinson), 647 F.Supp.2d 644, 701 (E.D.La. Nov.18, 2009) (citing Lively v. United States, 870 F.2d 296, 297 (5th Cir.1989)). The second part of the statute—the "discretionary function" exception—bars claims based on the performance of a government agency's or employee's discretionary function, regardless of whether that agency or employee abused its discretion. Id. at 702 (citation omitted).
Southern Scrap relies on the Robinson court's finding that neither exception to the waiver of sovereign immunity applies to the claim regarding the Corps' negligent maintenance and operation of the MRGO navigational channel. Robinson, 647 F.Supp.2d at 701-17. The government also relies on Robinson in urging this Court to dismiss Southern Scrap's claims that the United States negligently designed, engineered, constructed, and failed to dredge the MRGO because those claims challenge conduct that was both discretionary and subject to policy analysis.
Courts have routinely held that the Corps' decisions regarding constructing dikes or dredging rivers are protected by the discretionary function exception. See Robinson, 627 F.Supp.2d at 697; Payne v. United States, 730 F.2d 1434 (11th Cir. 1984)(Corps of Engineers' decision in dredging and widening river, causing erosion and collapse of plaintiff's house was protected by discretionary function exception); Columbia Gulf Transmission Co. v. United States, 966 F.Supp. 1453, 1465 (S.D.Miss.1997)(Corps' decisions regarding whether, where, and how to build dikes and revetment along Mississippi River was protected by the discretionary function exception); Vaizburd v. United States, 90 F.Supp.2d 210 (E.D.N.Y.2000) (Corps' decisions regarding design and construction of storm damage reduction and shoreline protection project were protected by discretionary function exception); Devito v. United States, 12 F.Supp.2d 269 (E.D.N.Y. 1998)(Corps' decisions as to proper method to combat hurricane damage and beach erosion, which allegedly accelerated shoreline
As to repair and maintenance of the MRGO, the government points out that Judge Duval ruled favorably on this issue for some but not all plaintiffs; the court granted judgment for the plaintiffs located in the St. Bernard Polder, but denied recovery to the Robinsons, located in the New Orleans East Polder. The government contends that Southern Scrap's facility is located next to the New Orleans Polder and the St. Bernard Polder, on the Industrial Canal and outside any flood control structures. The government adds that, because Southern Scrap claims that the MRGO funneled the storm surge to its facility, this theory should be rejected because the funneling effect is inherent in the design of the MRGO and, therefore, the government is shielded from any such claim by the discretionary function exception. Because severing and staying the counterclaims pending appeal in the Robinson matter is appropriate, the Court need not determine the applicability of the exceptions to the government's assertions of immunity at this time.
Even if the Court does not dismiss Southern Scrap's counterclaims for lack of subject matter jurisdiction, the United States contends that the counterclaims should be severed and stayed pending resolution of the appeal in the Robinson case. The government points out quite accurately that the appellate decision in Robinson will resolve governmental immunity issues which will inform this Court's decision on those same issues.
Federal Rule of Civil Procedure 21 authorizes the Court to sever claims against a party. Fed.R.Civ.P. 21. Also, Rule 42 provides:
Fed. R.Civ.P. 42(b). The Court has broad discretion to sever issues to be tried. Anderson v. Red River Waterway Comm'n, 231 F.3d 211, 214 (5th Cir.2000); Xavier v. Belfor Group USA, Inc., Nos. 06-491 and 06-7804, 2008 WL 4862549, at *3 (E.D.La. Sept. 23, 2008). The Court may order severance when it determines
The government relies on the same factors that support its motion to dismiss Southern Scrap's permissive counterclaims: the United States' Wreck Act claim and Southern Scrap's counterclaims do not arise out of the same transaction or occurrence and do not share relevant evidence, witnesses or legal theories. The Court agrees.
As the government points out, prejudice may be avoided by severing Southern Scrap's counterclaims because neither the United States nor Southern Scrap will have to incur the expense of presenting the factual and expert testimony necessary to determine the amount of storm surge experienced at the Southern Scrap facility, the cause of the storm surge, and what impact (if any) the maintenance or repair of the MRGO had on the storm surge.
Finally, the United States seeks a ruling that it is entitled to recover all of its actual wreck removal costs (subject to proof at trial)
The Wreck Act requires the owner, operator or lessee of a wreck sunk in navigable waters to remove the wreck. 33 U.S.C. § 409; 33 C.F.R. § 245.10 ("Primary responsibility for removal of wrecks or other obstructions lies with the owner, lessee, or operator"). The responsible party is required to prosecute such removal diligently and, if the responsible party fails to do so, then the United States is authorized to remove the wreck. Id.
The United States, through the Corps of Engineers, may remove wrecks pursuant to 33 U.S.C. § 414 (non-emergency removals) or 33 U.S.C. § 415 (emergency removals). The emergency wreck removal provision provides:
33 U.S.C. 415(a). In emergency situations, the District Engineer may bypass the conditions for non-emergency removals if the wreck impedes or stops navigation, or poses an immediate threat to life, property, or a structure that facilitates navigation. 33 C.F.R. § 245.50(b).
Section 415 of the Wreck Act provides for recovery of "actual costs" when the government removes a wreck in an emergency:
33 U.S.C. § 415(c) (emphasis added). The regulations require the Corps to seek recovery for all removal and disposal costs in excess of the value of the recovered obstructing object. 33 C.F.R. § 245.60.
Title 33 C.F.R. § 245.10(c) provides:
In 1986 and again in 1996, Congress amended the Wreck Act to increase what the Corps could recover from wreck owners who failed to remove their wrecks. Originally, Sections 414 and 415 imposed only in rem liability for the government's removal costs, up to the value of the wrecked subject and its cargo. In 1986, the law was amended to provide that owners, lessees, and operators of such obstructions sunk in navigable waters shall be
No cases are directly on point. The government invokes dicta in some cases to support its position that recovery of "actual cost" means recovery of the full amount it paid Boh Bros. See, e.g., In re Southern Scrap Material, L.L.C., 541 F.3d 584, 592 (5th Cir.2008)(noting that, in addition to in rem liability, the responsible party shall also be liable to the United States for the actual cost of a wreck removal which exceeds the in rem value of the wreck); Wyandotte Transp. Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967)(noting that it would be surprising if Congress intended that the government's performance of Wyandotte's duty to remove the wreck must be at government expense); University of Texas Medical Branch at Galveston v. United States, 557 F.2d 438 (5th Cir.1977)(the United States must be afforded complete relief against the parties responsible for the sinking). While the amendments certainly suggest that Congress wanted to ensure that the Corps recovered its full expenses in removing wrecks, this gets the Court no closer to determining what role the Court might play in reviewing this component of a Wreck Act claim. After all, "reasonableness" is not a stranger to tests for success in our professional culture.
Southern Scrap insists that the text "actual cost" must be construed so as to avoid an absurd result. It would be absurd, Southern Scrap insists, for the Corps to be permitted to recover $90 million or somehow be permitted to run up (although the statute does not condone bad faith) wreck removal expenses without limit, knowing that the responsible party that had no control over the operation would be sent the bill. The issue, insists Southern Scrap, is, again, one of causation: excessive and unnecessary expenses are caused by something separate from actual wreck removal expenses: the Corps' failure to properly manage the wreck removal operation and implement appropriate cost control.
The government draws attention to cases involving environmental remediation statutes to support its contention that Congress seeks to ensure that the government can recover all of its costs paid. See United States v. Beatty, Inc., 401 F.Supp. 1040, 1045 (W.D.Ky.1975)(rejecting defendants' argument that the United States' oil clean up costs were excessive because the Oil Pollution Act permitted the government to recover the actual costs incurred in cleaning up the pollution); Union Petroleum Corp. v. United States, 228 Ct.Cl. 54, 651 F.2d 734, 744 (1981)(Under the Federal Water Pollution Control Act, the Coast Guard may recover all cleanup costs, even if those costs may be considered unreasonable); United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 748 (8th Cir.1986)(under CERCLA, all costs incurred by the government that are not inconsistent with the National Contingency Plan are conclusively presumed to be reasonable; CERCLA does not refer to "all reasonable costs" but simply to "all costs"). What is central, submits the government, is not what by way of collateral issues was reasonable, but rather, what did the government actually pay as billed.
The government contends that under the circumstances, where the wreck removal
Here, the Corps contracted with Boh Bros., which in turn contracted with Bisso Marine, to remove the displaced drydock.
Because the Wreck Act provides for recovery of actual wreck removal expenses and imposes no encumbrance of a "reasonableness" requirement, the Court finds that it cannot second-guess whether the expenses incurred by the Corps were reasonable. But the Court can inquire into whether the sums expended were done so arbitrarily. Accordingly, the Court finds that the government can recover its actual cost, but the actual cost paid must not be arbitrary.
Accordingly, IT IS ORDERED: that the United States' motion for summary judgment on liability is GRANTED; the United States' motion to dismiss or sever and stay Southern Scrap's counterclaim is DENIED insofar as it seeks dismissal, but GRANTED insofar as it seeks to sever and stay;
The Corps maintains that the project proved to be more difficult, time-consuming and costly than initially envisioned by the Corps because the project commenced so soon after Katrina had hit New Orleans. Some of the challenges included procuring equipment, supplies, and services, finding manpower, and arranging transportation to and from the job-site, as well as the fact that Hurricane Rita struck Lake Charles on September 23, significantly impacting New Orleans.
Section 409 provides:
A more speculative issue would be whether a wreck owner was prevented from removing a wreck because of an Act of God. (If Southern Scrap had been prevented from returning to the City or its access to the Industrial Canal was restricted and it was in this way prevented from removing the wreck, perhaps a different question would be presented. However, the government points out that, by the time wreck removal operations began, Southern Scrap had access but lacked the workers or equipment to carry out removal.)