On December 6, the 16th Judicial District Court in St. Mary Parish Louisiana ruled in favor of the Bayou Bridge pipeline, issuing a mere $450 punishment for trespassing in an eminent domain suit filed by three local residents. The lawsuit, filed in late July of 2018, argued that Energy Transfer, LP (formerly Energy Transfer Partners), the owner of the pipeline, illegally began construction on privately owned land without proper permission.

The Bayou Bridge pipeline is a 163-mile underground oil pipeline intended to transport oil from the Louisiana-Texas border to St. James Parish. Many residents do not mind their land being used to house the pipeline, but many other residents are very opposed to the idea, claiming that the land being used is “not valueless, vacant land…. The property is part of a larger vital and vibrant ecosystem filled with life that includes trees, wildlife, fish, and birds, and it plays an important role in the economic health and well-being of the state beyond its borders.” Thus, for the landowners who filed the suit, the challenge is not about money, but it is rather about protecting the land.

The defense claimed that they had eminent domain over the land, allowing them to take it through expropriation due to the fact that the land was used for the public’s interest. The Court agreed, allowing them to continue the pipelines construction, but assessed a small penalty for trespassing—150 dollars to each plaintiff—given that they did not exercise due diligence in notifying the property owners prior to the beginning of construction. The plaintiffs continue to hold that it is not in the public’s interest to facilitate coastal erosion, the natural consequence of digging, carving, and drilling into Louisiana’s marshland. Additionally, the plaintiffs argue, the pipeline places the utilized land at risk of an oil catastrophe, citing Energy Transfer’s history of 3.6 million gallons of oil spilled in the last sixteen years.

A neoprene-producing chemical plant is facing multiple lawsuits as a result of potential carcinogens released into the air. The Denka Performance Elastomer plant located in Laplace, Louisiana, is said to be one of the only chemical plants in the country that releases the chemical chloroprene into the air.

According to a study by the Environmental Protection Agency, chloroprene is “a volatile, flammable liquid used primarily in the manufacture of polychloroprene,” 90 percent of which is found in solid form to make adhesives, automotive or industrial parts, coatings, dipped goods, or in this case, neoprene. One result of the polychloroprene manufacturing process is the release of chloroprene into air as exhaust. Similar EPA studies assert that chloroprene is a “likely carcinogen” and that safe levels of chloroprene in the air remain under 0.2 micrograms of chloroprene per cubic meter of air.

Local residents claim that their proximity to the plant causes them to live in fear that they will one day suffer from cancer, and their fear is not unfounded. A 2015 EPA survey of the air showed that St. John Parish, Louisiana, had the highest risk of cancer from an airborne pollutant in the country. It is unknown if this finding is directly related to chloroprene; however, the plant in question is one of only fourteen in the country that produce the chemical, and it has been in operation since 1963 (though its owner company has changed since its founding).

A Coast Guard mandate has finally been issued to plug an oil leak off the coast of Louisiana. The destroyed Taylor Energy platform, MC-20 Saratoga, has been leaking since Hurricane Ivan which struck the Gulf Coast in 2004. The leak releases between 11,000 and 29,000 gallons of oil each day, which has been catastrophic. Measured across the fourteen years that the rig has been damaged, the spill could total 148 million gallons of oil or more.

Though Taylor Energy Company is no longer an active oil supplier—according to records, they have one remaining employee—they have been ordered by the Coast Guard to establish a containment plan including a potential contractor. The leak was initially discovered in 2010 when researches were conducting evaluations of the Deepwater Horizon spill and noticed a sheen on the water that could not have been caused by that disaster. Further research was then conducted as to an alternate cause, and the result was the detection of the Taylor Energy leak.

Last week’s Coast Guard order states that Taylor’s containment plan must “eliminate the surface sheen and avoid the deficiencies associated with prior containment systems.” Failure to comply with the order will result in a fine of $40,000 per day. Naturally, the energy company is disputing the order, claiming that the sheen on the water’s surface is not a result of an ongoing oil leak. Instead, they say, the sheen is a result of the oil-saturated seafloor that unavoidably releases oil and gas bubbles, and thus, the oil wells are no longer actively leaking.

That which has been boosting Louisiana economically for decades could at the same time be sinking it, literally. The oil industry has found a comfortable home in the southern part of the United States, hugely feeding the economies of Texas and Louisiana for as long as the current generations of residents can remember. In fact, the two states currently lead the country in oil production, and in Louisiana, the industry employs nearly 45,000 individuals. While statistics such as these paint the oil industry in a favorable light, though, many groups are calling its full impact on Louisiana into question.

Louisiana attorneys are certainly familiar with coastal litigation, protecting coastal plains and shores from environmental negligence or abuse, but as regards the oil industry, coastal litigation has almost exclusively been reserved for major incidents such as the Deepwater Horizon oil spill of 2010. Major spills, however, are not the only occasions in which oil drilling damages the Gulf Coast. In fact, an August 2018 article of The Bayou Brief argues that the drilling itself is cause for environmental concern as it expedites coastal erosion. That which is largely responsible for building up Louisiana’s economy—oil—is also responsible for tearing down its shores and critical wetlands.

Why, then, has the state not seen an increase in litigation to combat this coastal damage? According to the aforementioned article, the answer is candid but simple: money. Industry economists argue that if it faced increased litigation, it risks falling into another major recession leading to job cuts and profit decreases. Advocates for the continued drilling without environmental responsibility argue that plaintiff’s attorneys who pursue such litigation selfishly have no concern for the economic growth of the state; however, this is simply not the case. Rather, the pursuit of such coastal litigation places the long-term priority of ecological conservation above the short-term monetary concerns putting the ecosystem at risk.

A maritime allision between a boat and the Sunshine Bridge in Donaldsonville, Louisiana, raises questions as to who may receive compensation under maritime law. The crane barge, operated by an employee of Marquette Transportation Company, caused more than $5 million dollars of damage to the bridge. As a result, the bridge will be closed for nearly four months, and the frequent traversers of it are forced to extend each commute by at least an hour. The inconvenience thrust upon these local residents is tangible, but do they have a legal argument for compensation? Unfortunately, and perhaps unjustly, current maritime case law may not in their favor.

In the case Taira Lynn Marine Limited Number 5 v. Jays Seafood, Inc. et al., the primary issue is whether claimants who suffered no physical damage to a proprietary interest can recover for their economic losses as a result of a maritime allision. The case revolves around a 2001 incident in which a barge allided with a bridge, releasing toxic gasses into the air. As a result, the Louisiana State Police ordered a mandatory evacuation of all businesses and residence within a certain radius of the bridge, including fourteen businesses who made commercial use of the bridge and subsequently suffered economic loss. Though these businesses filed claims for compensation, the court ruled that “there can be no recovery for economic loss absent physical injury to a proprietary interest.”

In the case involving the Sunshine Bridge and Marquette Transportation, it is clear that the State of Louisiana has a right to compensation as the owner of the physically damaged bridge. It seems, however, that according to Taira Lynn that the local residents do not have such a right, though, according to sources, what was once a 90-second drive across the Mississippi River has turned into a 90-minute, 50-mile detour, costing drivers both time and money. In fact, local schools have had to adjust their start times to accommodate students who are simply unable to arrive at such an early hour due to the bridge’s closure. These affected citizens certainly do not have any ownership of the bridge, but in the interest of justice, this should not disqualify them from being compensated for their economic loss.

Following a maritime allision involving a crane barge and a bridge in southern Louisiana, Marquette Transportation Company could be facing a class-action lawsuit with punitive damages due to the company’s alleged gross negligence manifested in the frequent and consistent reckless behavior of its employees. Repairs to the bridge are underway, and the costs of said repairs could amount to more than $5 million, a price currently charged to the State of Louisiana. The scope the lawsuit involves compensation for the bridge repairs as well as compensation for the inconveniences caused to the 25,000 local residents who use the bridge on a frequent basis. If the egregious conduct is proven, punitive damages should be awarded to deter those unsafe practices – because running into 32 bridges and merely fixing the damage caused has not been enough deterrence for Marquette Transportation Company to change its ways. The question becomes, “How much in punitive damages is appropriate or necessary in a maritime case like this?”

To answer this question, one can look to two relevant cases. The first is Exxon v. Baker from the year 2008, and the second is Warren v. Shelter Insurance from the year 2017. Following a defense appeal of a punitive-damages award of $5 billion, the Court reduced the award to $2.5 billion so as to be more proportionate to the concurrent compensatory damages awarded. Citing civil code, Exxon states, “An award for punitive damages should be (1) in an amount that will deter the defendant and others from similar conduct, (2) proportionate to the wrongfulness of the defendant’s conduct and the defendant’s ability to pay, but (3) not designed to bankrupt or financially destroy a defendant.” The case admits that the notion punitive damages often falls under criticism due to their sheer unpredictability throughout recent history; however, it seeks to find a fair “upper limit” by way of proportions, and it ultimately concludes that a 3:1 ratio of punitive to compensatory damages is an appropriate maximum, though a median ratio of 1:1 ought to be pursued.

Fitting the logic of Exxon, the Warren case issued a punitive-damage award of 2:1 following the violent death of an individual involved in a boating incident. Warren uses the same criteria enumerated in Exxon for determining the amount of punitive damages; however, unique to the case, it adjusts the amount of compensatory damages to form a proper proportion between the two. Repeating the language of Exxon, Warren states that “punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.” An excessive penalty violates the defendant’s due process rights, but a minimal penalty could be ineffective. In this case, the defendant’s penalty was reduced from $23 million to $4.25 but the compensatory damages were raised from $125,000 to $2,125,000, creating the 2:1 ratio.

Following a maritime allision that occurred on October 12, 2018, the Sunshine Bridge, which crosses the Mississippi River in southern Louisiana, has been closed due to structural damage. The repairs to the bridge are underway, but they could last until January or February of 2019, totaling nearly 100 days of non-service to local residents and $5 million dollars of bills to the State of Louisiana. Heavier consequences, however, could befall Marquette Transportation Company, the owner of the at-fault vessel.

In the last five years, Marquette vessels have collided with 32 bridges—roughly 6 collisions per year, or one collision every 2 months. This already staggering statistic becomes even more alarming when paired with the additional fact that Marquette has faced no penalty or fine for any of the incidents. It is for these reasons that the plaintiffs’ attorneys could seek punitive damages against the transportation company. According to the 2008 case Exxon v. Baker, “punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.” They result from “gross negligence,” “willful, wanton, and reckless indifference for the rights of others,” or “behavior even more deplorable.” The behavior of the ship’s captain is undoubtedly negligent, for he attempted to impossibly pass underneath a bridge with a fully extended crane boom. However, the scope of the dispute at hand regards Marquette Transportation at the corporate level. Thus, one must question if negligence and/or recklessness can be found in the institution.

The Exxon case defines that “Recklessness may consist of either of two different types of conduct. In one, the actor knows, or has reason to know…of facts which create a high degree of risk of…harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other, the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.” While no specific act of recklessness (at the corporate level) fitting the definition above has been brought to light, it can and must be argued that the frequency and consistency of maritime allisions involving Marquette vessels is exemplary of an institutional negligence resulting in the poor performance of its employees. In fact, the aforementioned case addresses situations in which no concrete reckless action is detected, saying that “heavier punitive awards have been thought to be justifiable when wrongdoing is hard to detect (increasing chances of getting away with it).” Maritime allisions involving Marquette vessels perhaps do not fall into the category of corporate negligence, but they are certainly evidence of it.

Marquette Transportation Company is facing a potential class-action lawsuit after one of their crane barges struck the Sunshine Bridge in St. James Parish, Louisiana. The boat operator, who is still unnamed, is alleged to have been travelling along the Mississippi River when its crane, extended roughly 100 feet in the air, struck the southeastern side of the bridge. The damages to the bridge could total up to $5 million in repairs.

https://www.louisianalawyerblog.com/files/2018/10/5bc0b59f46f99.image_-300x225.jpg
It is reported that the bridge is used by roughly 20,000 travelers every day. The lack of the bridge causes a detour that could add an additional hour to one’s drive, and the added time results in added financial burdens. Standing in the plaintiffs’ way is the ninety-year-old Robins Dry Dock rule which protects operators from being held liable for tertiary economic damages caused by accidents on the water. Subsequently, some maritime attorneys claim that because the accident occurred on a river and because nearby residents do not own the thing that damaged, the lawsuit applies to the bridge’s repair costs alone.

The negligence of the barge operator is almost undisputed. Rather, the scope of the dispute surrounds the damages for which Marquette can be held responsible. A recent search through a U.S. Coast Guard database shows record of Marquette vessels colliding with bridges 32 times since January 1, 2013; however, the company has neither faced a single penalty for these incidents, nor paid any compensation. In fact, going back further to 2006, there is evidence that another Marquette vessel struck the same bridge (the Sunshine Bridge) causing $2.1 million dollars in damage. In light of this history, the transportation company could be facing a lawsuit for punitive damages, though no injury or death occurred, on the basis of repeated employee wrongdoings as a result of purported negligence at the institutional, corporate level.

Tia Coleman is calling the defense of Branson Duck Vehicles and Ripley Entertainment “callous and calculated” following a duck boat accident on July 19, 2018. Nine of Coleman’s family members and eight others were killed when the amphibious boat capsized during a storm. Ten days later, Coleman and her attorneys filed a $100 million wrongful death suit against the two companies, but the defendants have cited an 1851 law known as the Shipowners’ Limitation of Liability Act.

According to the law, a shipowner may limit damage claims following an accident to the value of the vessel and any pending freight so long as he can prove that he lacked knowledge of the vessel’s problem beforehand. Because the duck boat in question was a total loss with no value following the accident and there was no pending freight, Ripley and Branson’s attorneys are claiming zero liability. Needless to say, the 167-year-old law was originally written for a different purpose. At the time, maritime insurance did not exist. Thus, in creating the law, Congress hoped to encourage vessel purchases and maritime transport by guaranteeing protection for sea-vessel owners in case of an accident.

Following a Coast Guard investigation of the accident, probable cause of negligence was found on the part of the boat’s captain, though the defense contests this finding. On the basis of the finding, Coleman and her attorneys filed an additional federal lawsuit in September against the boat’s operator and manufacturer. “This tragedy was the predictable and predicated result of decades of unacceptable, greed-driven and will ignorance of safety by the boat industry,” the suit states. If such an argument holds and the accident is proven to have been the “predictable” result of “willful ignorance”, it is possible that the Shipowners’ Limitation of Liability Act will be deemed inapplicable in this particular case.

Blake-Trial-Ad-200x300

Blake R. David has been teaching advanced trial techniques to LSU Law students entering their final year of law school since 2016. David is a 2001 graduate of the Paul M. Hebert Law Center at LSU.

Read more:

https://www.law.lsu.edu/news/2018/08/14/lsu-law-thanks-trial-advocacy-program-faculty-members/

Super Lawyers
Multi-Million Dollar Advocates Forum
National Board of Trial Advocacy
Million Dollar Advocates Forum
Martindale-Hubbell
The National Trial Lawyers