In Re: Katrina Canal, et al

Filing

REVISED PUBLISHED OPINION FILED. [6650150-2] [08-30738, 08-30913]

In Re: Katrina Canal, et se: 08-30738 Ca al

Document: 00511286267 Page: 1 Date Filed: 11/05/2010

Doc. 0

REVISED NOVEMBER 4, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 14, 2010 N o . 08-30738 Lyle W. Cayce Clerk

I n Re: In the Matter of the Complaint of GREAT LAKES DREDGE & DOCK C O M P A N Y LLC, As Owner of the dredges California, Manhattan Island, P a d r e Island, and Alaska, and as owner pro hac vice of the Dredge T e x a s from Exoneration from the Limitation of Liability ----------------------------------G R E A T LAKES DREDGE & DOCK COMPANY, As owner of the dredges C a lifo r n ia , Manhattan Island, Padre Island, and Alaska, and as owner pro hac v ic e of the Dredge Texas Petitioner - Appellee v. L O U I S I A N A STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M T H O M A S RICHARDSON; PHILLIP REED; MARGUERITE ABRAHMS; ET AL Claimants - Appellants -------------------------------------I n Re: In the Matter of the Complaint of MIKE HOOKS INC, as owner o f the Dredge Missouri H Petitioner - Appellee v. L O U I S I A N A STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M T H O M A S RICHARDSON; PHILLIP REED Claimants - Appellants ---------------------------------------

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Case: 08-30738 Document: 00511286267 Page: 2 Date Filed: 11/05/2010

No. 08-30738

I n Re: In the Matter of the Complaint of T L JAMES & COMPANY INC, a s owner of the dredges Tom James and George D Williams II praying e x o n e r a t io n from or limitation of liability Petitioner - Appellee v. L O U I S I A N A STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M T H O M A S RICHARDSON; PHILLIP REED Claimants - Appellants ---------------------------------------I n Re: In the Matter of the Complaint of GULF COAST TRAILING COMPANY, a Louisiana Partnership, as owner of the dredge Ouachita, praying for e x o n e r a t io n from or limitation of liability; TLJIC LLC, a partner therein as o w n e r of the dredge Ouachita praying for exoneration from or limitation of lia b ilit y Petitioners - Appellees v. L O U I S I A N A STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M T H O M A S RICHARDSON; PHILLIP REED Claimants - Appellants ----------------------------------------I n Re: In the Matter of the Complaint of MANSON CONSTRUCTION C O M P A N Y , as owner and operator of the Hopper Dredges Newport a n d Bayport, for exoneration from or limitation of liability Petitioner - Appellee v. L O U I S I A N A STATE; ORLEANS PARISH T H O M A S RICHARDSON; PHILLIP REED SCHOOL BOARD; DEBBIE M

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No. 08-30738 Claimants - Appellants ----------------------------------------I n Re: In the Matter of the Complaint of LUHR BROS INC, as o w n e r of Spud Barge L-1101, Spud Barge L-1103 and M/V Michael A a n d as owner Pro Hac Vice of M/V Charlie B praying for exoneration fr o m or limitation of liability Petitioner - Appellee v. L O U I S I A N A STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M T H O M A S RICHARDSON; PHILLIP REED Claimants - Appellants -----------------------------------------I n Re: In the Matter of the Complaint of KING FISHER MARINE S E R V I C E L P as owner of the Dredges Leonard M Fisher and Everett F is h e r Petitioner - Appellee v. L O U I S I A N A STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M T H O M A S RICHARDSON; PHILLIP REED Claimants - Appellants -----------------------------------------I n Re: In the Matter of the Complaint of PINE BLUFF SAND AND G R A V E L COMPANY as owner and operator of dredge Marion praying for e x o n e r a t io n from or limitation of liability Petitioner - Appellee v.

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No. 08-30738 L O U I S I A N A STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M T H O M A S RICHARDSON; PHILLIP REED Claimants - Appellants ------------------------------------------------I n Re: In the Matter of the Complaint of WEEKS MARINE INC a s owner of the Dredges B E Lindholm, George D Williams, Weeks 2 6 2 and BT 208 Petitioner - Appellee v. L O U I S I A N A STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M T H O M A S RICHARDSON; PHILLIP REED Claimants - Appellants

Appeal from the United States District Court fo r the Eastern District of Louisiana

B e fo r e KING, HIGGINBOTHAM and GARZA, Circuit Judges. K I N G , Circuit Judge: In this consolidated limitation action, Claimants, Hurricane Katrina flood v ic t im s , filed claims against the Limitation Petitioners, private companies that o p e r a t e d twenty-two dredging vessels along the Mississippi River Gulf Outlet p u r s u a n t to contracts with the United States Army Corps of Engineers. Claimants suffered damages from the flooding of Orleans and St. Bernard P a r is h e s when several levee systems failed as a result of the erosion of protective w e t la n d s allegedly caused by the Limitation Petitioners' negligent maintenance d r e d g in g operations. The Limitation Petitioners moved to dismiss the claims u n d e r FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) and 12(c). The district court

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No. 08-30738 g r a n t e d the motion to dismiss, finding that the Limitation Petitioners owed no d u t y to the Claimants because the devastation caused by Hurricane Katrina was n o t a foreseeable result of the allegedly negligent conduct of any Limitation P e t it io n e r . Claimants timely appealed. We affirm the judgment of the district c o u r t. I . FACTUAL AND PROCEDURAL BACKGROUND T h e Mississippi River Gulf Outlet ("MRGO") is a 76-mile navigational c h a n n e l that connects the Gulf of Mexico with the Industrial Canal in New O r le a n s , bisecting the marshy wetlands of St. Bernard Parish and Chandeleur S o u n d . It was built between 1958 and 1965 by the United States Army Corps o f Engineers ("Corps of Engineers") pursuant to congressional authorization. From 1965 to 1993, the Corps of Engineers performed maintenance dredging to m a in t a in the navigability of the MRGO. Beginning in 1993, the Corps of

E n g in e e r s contracted with numerous private dredging companies, including the L im it a tio n Petitioners, to assist the Corps of Engineers in maintenance dredging a lo n g the MRGO. From 1999 to 2004, the Corps of Engineers awarded 154 c o n t r a c ts to private dredging companies, many to the Limitation Petitioners, to d r e d g e the length of the MRGO channel. Claimants in the present action, who number in the tens of thousands, are in d iv id u a ls , businesses, and other entities who own property that was damaged d u e to flooding after Hurricane Katrina made landfall on August 29, 2005. They c o n t e n d that the Limitation Petitioners' maintenance dredging operations c a u s e d severe damage to the Louisiana wetlands, which provide a natural b a r r ie r against tidal surge from storms and hurricanes. This damage to the w e t la n d s caused an amplification of the storm surge in the New Orleans region d u r in g Hurricane Katrina, which increased the pressure on the levees and flood

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No. 08-30738 w a lls along the MRGO, leading to levee breaches and the subsequent flooding o f St. Bernard Parish and Orleans Parish. Prior to the instant action, two separate class action suits ("Reed" and " A c k e r s o n ") were filed in the District Court for the Eastern District of Louisiana b y plaintiffs seeking damages from the United States and from private c o m p a n ie s that performed maintenance dredging in the MRGO pursuant to g o v e r n m e n t contracts. After consolidation of the Reed and Ackerson suits, the g o v e r n m e n t and the defendant dredgers moved to dismiss. B e fo r e the district court ruled on the defendants' motions, several of the d r e d g e r s filed petitions in the Eastern District of Louisiana under the Limitation o f Liability Act, 46 U.S.C. § 30511, seeking exoneration from and/or limitation o f liability for all claims for any damages arising out of Hurricane Katrina as a r e s u lt of their maintenance dredging activities for the Corps of Engineers.1 The lim it a t io n actions were consolidated into the present case (the "limitation a c t io n ") and transferred to the judge presiding over the Reed and Ackerson suits. T h e district court subsequently granted the motions to dismiss the claims a g a in s t the government and the defendant dredgers in the Reed and Ackerson s u it s .2 See In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2007 WL 7 6 3 7 4 2 (E.D. La. Mar. 9, 2007). The district court dismissed the claims against

The Limitation of Liability Act allows a shipowner to limit his potential liability for a maritime accident to the value of his interest in the vessel and its cargo. 46 U.S.C. § 30511. The Limitation of Liability Act provides that "[w]hen an action has been brought under this section . . ., all claims and proceedings against the owner related to the matter in question shall cease." § 30511. Here, however, the district court proceeded to judgment on the motions to dismiss in the Reed and Ackerson suits after the limitation actions were filed. On appeal from the district court's ruling, we concluded that the district court did not commit a reversible error in entering judgment on the motions to dismiss because the Claimants had "not identified any substantial prejudice arising out of the district court's procedural error." Ackerson v. Bean Dredging LLC, 589 F.3d 196, 210 (5th Cir. 2009). The parties do not challenge the order of decisions in this appeal.
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No. 08-30738 t h e government for lack of subject matter jurisdiction.3 Id. at *2. The district c o u r t dismissed the claims against the dredging companies under the g o v e r n m e n t contractor immunity doctrines articulated in Yearsley v. W.A. Ross C o n s tr u c tio n Co.4 and Boyle v. United Technologies Corp.5 The district court fo u n d that, because the dredging companies were alleged to have performed t h e ir contracts in conformity with the Corps of Engineers' specifications, and w e r e not alleged to have performed negligently or absent due care, the dredgers, a s government contractors, were immune from liability for any damages caused b y their dredging operations for the Corps of Engineers. In re Katrina, 2007 WL 7 6 3 7 4 2 , at *3­4. We affirmed on appeal, finding that the pleadings "attack C o n g r e s s 's policy of creating and maintaining the MRGO, not any separate act o f negligence by the Contractor Defendants," and therefore the district court did

The district court found that the plaintiffs failed to file a timely administrative claim prior to filing suit against the government, as required by the Admiralty Extension Act, 46 U.S.C. § 30101(c). This ruling was not appealed. 309 U.S. 18 (1940). In Yearsley, the Supreme Court held that a government contractor was not liable for damage caused by the construction of dikes in the Missouri River, where the construction project was validly authorized and directed by the federal government. The court held that if "th[e] authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will." Id. at 20­21. To hold the contractor liable, "the ground of liability [must be] found to be either that he exceeded his authority or that it was not validly conferred." Id. at 21. 487 U.S. 500 (1988). Under Boyle, liability cannot be imposed upon government contractors for design defects in military equipment when "(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." Id. at 512. Citing Boyle, the district court stated that "[c]ontractors cannot be held liable for performing contracts in conformity with the Government's specifications, providing the contractors carried out such contracts with due care and absent negligence." In re Katrina, 2007 WL 763742, at *4. The district court noted that "Plaintiffs' counsel in the briefs and at oral argument could not point out any allegation in the lengthy complaint which alleged that the Dredging Defendants did not carry out the contracts at issue with due care." Id. We did not address this portion of the district court's ruling on appeal.
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No. 08-30738 n o t err in dismissing the action on the basis that Yearsley immunity applied. See Ackerson, 589 F.3d at 207. F o llo w in g dismissal of the class action suits, Claimants filed claims a g a in s t the dredgers in the limitation action. Many of the claims asserted in the lim it a t io n action were substantially similar to those brought against the d r e d g e r s in the Reed and Ackerson suits. But the Claimants also added new a lle g a t io n s of negligence to defeat the dredgers' government contractor im m u n it y defenses, as well as the dredgers' entitlement to exoneration from or lim it a t io n of liability under the Limitation of Liability Act. Specifically, they a lle g e d that the Limitation Petitioners "failed to perform their dredging work w it h due care" and that they "performed their dredging work in the MRGO n e g lig e n t ly ." Claimants also alleged that the Limitation Petitioners violated r e q u ir e m e n t s imposed by their contracts with the Corps of Engineers and by v a r io u s federal and state statutes and regulations: 28. L im it a t io n Petitioners and the Vessels failed to follow r e q u ir e m e n t s of 33 CFR Parts 335­38, particularly 33 CFR 3 3 6 .1 (c )(4 ) and 33 CFR 320.4(b) and Executive Order No. 1 1 9 9 0 made applicable thereby. L im it a t io n Petitioners and the Vessels deviated from and/or fa ile d to execute their dredging activities in the manner r e q u ir e d by the Corps of Engineers, or by reasonably precise s p e c ific a t io n s issued by the Corps of Engineers (if they were is s u e d ) and/or by Nationwide Permits, specific permits, or g e n e r a l authorizations for dredging issued by or obtained by t h e Corps of Engineers pursuant to 33 CFR 337.5 and 338.2, a n d all other regulations that Limitation Petitioners and the V e s s e ls were required to follow. L im it a t io n Petitioners and the Vessels failed to follow L o u is ia n a State dredging requirements (made applicable by 33 CFR 337.2), including those contained in Chapter 7,

29.

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No. 08-30738 S e c t io n s 701 and 707 of the Louisiana Administrative Code r e la t e d to dredging activities.6 31. L im it a t io n Petitioners and the Vessels have performed "advance maintenance" and "over-depth" dredging of the MRGO, going beyond its authorized project depth. Limitation Petitioners and the Vessels have also performed "over-width" dredging, also for advance maintenance purposes. Limitation Petitioners and the Vessels also overcut the slope of the channel, based on the potential for undisturbed material to slough downward to the channel, and for other reasons, changing the designed slope of the channel's banks, thereby enlarging the design width of the channel, causing wetlands along the banks of the channel to erode, and causing the width of the channel to increase. These activities were conducted without authorization, approval or control of the Corps of Engineers, and were outside of any reasonably detailed specifications provided by the Corps of Engineers for the work. These activities by Limitation Petitioners and the Vessels constitute negligence and violate regulations enacted to control dredging activities.

Thus, in contrast to the Reed and Ackerson cases, the Claimants alleged t h a t their injuries resulted from the erosion to the wetlands caused by the L im it a tio n Petitioners' negligent dredging, performed in breach of the standards s e t out in their Corps of Engineers contracts and various rules and regulations a lle g e d to apply to their operations, rather than from the very existence of the M R G O or by any non-negligent dredging performed by the Corps of Engineers o r the Limitation Petitioners in conformity with their government contracts. T h e Limitation Petitioners moved to dismiss under Rule 12(b)(1) and Rule 1 2 (c ). The district court granted the motion, holding as a matter of law that the

In the Reed and Ackerson cases, plaintiffs moved to amend their complaints to assert nearly identical allegations as those asserted in Claims ¶¶ 28, 29, and 30 in the instant action. We affirmed the district court's denial of leave to amend to add these allegations, holding that they were too conclusory to state a claim for relief. Ackerson, 589 F.3d at 208­09.

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No. 08-30738 L im it a tio n Petitioners did not owe a duty to the Claimants, and were therefore n o t liable, because the Claimants' hurricane damages were not the legally fo r e s e e a b le consequence of the Limitation Petitioners' allegedly negligent d r e d g in g activities. Relying on a standard that we articulated in Consolidated A lu m in u m Corp. v. C.F. Bean Corp., 833 F.2d 65 (5th Cir. 1987), the district c o u r t held that the harm was too attenuated from the alleged cause to be legally fo r e s e e a b le , noting: I t is simply inconceivable to this Court why discrete acts of dredging a ft e r 1993 by the myriad dredgers would be sufficient for the s p e c ific dredger to foresee the absolutely devastating and c a t a c ly s m ic damages that occurred to St. Bernard and Orleans P a r i s h e s . Simply put, the Limitation Dredgers could not have a n t ic ip a t e d that its alleged negligent dredging would be a cause th e r e o f. Furthermore, the district court held that the pleadings failed sufficiently to a l l e g e a causal connection between any of the Limitation Petitioners' alleged n e g lig e n t acts and any of the Claimants' damages. "[I]t seems inexorable that in order to find liability, there would have to be some group liability finding in r e fe r e n c e to causation. Claimants have cited no case in the maritime law c o n t e x t where a group liability theory has been recognized or applied." The d is t r ic t court concluded, "[t]o recover on this theory would obviate proof of in d iv id u a l causation and [the theory] is therefore fatally flawed."7 Claimants t im e ly appealed.

The Limitation Petitioners also argued that the Claimants' allegations in the instant action are practically identical to those that the district court rejected in the Reed and Ackerson cases, and should therefore be dismissed on the same basis--that the Claimants did not allege that the dredgers deviated from their contracts to overcome their immunity as government contractors under Yearsley. They also argued that the new allegations of negligence were too conclusory to compel a different result. The district court found that the pleadings sufficiently alleged that the Limitation Petitioners were not entitled to the government contractor immunity shield to overcome dismissal on this basis. The parties do not challenge this determination on appeal.

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No. 08-30738 I I . DISCUSSION A. R u le 12(b)(1) The Claimants argue on appeal that the district court erred in dismissing t h e ir claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, a s s e r t in g that the district court had jurisdiction over their claims under 28 U .S .C . § 1333.8 Alternatively, they argue that, had the district court lacked ju r is d ic t io n , it erred in reaching the merits of their claims and dismissing them w it h prejudice under Rule 12(c) for failure to state a claim. T h e Claimants are correct that when, as here, "a Rule 12(b)(1) motion is file d in conjunction with other Rule 12 motions, the court should consider the R u le 12(b)(1) jurisdictional attack before addressing any attack on the merits[ . . . ] to prevent[ ] a court without jurisdiction from prematurely dismissing a c a s e with prejudice." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2 0 0 1 ). Furthermore, they correctly note that if the district court had held that it lacked subject matter jurisdiction, it should have entered dismissal without p r e ju d ic e to allow the Claimants to retry their claims in a court with jurisdiction t o hear them. See id. ("The court's dismissal of a plaintiff's case because the p la in t iff lacks subject matter jurisdiction is not a determination of the merits a n d does not prevent the plaintiff from pursuing a claim in a court that does h a v e proper jurisdiction."). However, it is clear from the substance of the district court's opinion that t h e district court did not dismiss for lack of subject matter jurisdiction. Although the district court referenced both Rules 12(b)(1) and 12(c) when g r a n t in g the motion to dismiss, the entirety of the district court's analysis a d d r e s s e d the merits of the Claimants' pleadings. The district court stated no

"The district courts shall have original jurisdiction, exclusive of the courts of the States, of any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." § 1333(1).

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No. 08-30738 b a s is for dismissal under Rule 12(b)(1), and we agree with the Claimants that n o n e exists. Accordingly, because the district court did not hold that it lacked s u b je c t matter jurisdiction, and as there is no basis for such a holding, the d is t r ic t court did not err in entering dismissal with prejudice on the merits u n d e r Rule 12(c). We therefore conclude that the district court's reference to R u le 12(b)(1) does not provide a basis for reversal.9 B. R u le 12(c) We review de novo a district court's ruling on a Rule 12(c) motion for ju d g m e n t on the pleadings. Great Plains Trust Co. v. Morgan Stanley Dean W itte r & Co., 313 F.3d 305, 312 (5th Cir. 2002) (citing Hughes v. Tobacco Inst., I n c ., 278 F.3d 417, 420 (5th Cir. 2001)). A motion under Rule 12(c) for failure to s t a t e a claim is subject to the same standards as a motion to dismiss under Rule 1 2 (b )(6 ). Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Great Plains T r u s t Co., 313 F.3d at 313 n.8. T o avoid dismissal, "a complaint must contain sufficient factual matter, a c c e p t e d as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v . Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U .S . 554, 570 (2007)). To be plausible, the complaint's "[f]actual allegations m u s t be enough to raise a right to relief above the speculative level." Twombly, 5 5 0 U.S. at 555. In deciding whether the complaint states a valid claim for r e lie f, we accept all well-pleaded facts as true and construe the complaint in the lig h t most favorable to the plaintiff. MySpace, 528 F.3d at 418 (citing Hughes, 2 7 8 F.3d at 420). We do not accept as true "conclusory allegations, unwarranted fa c t u a l inferences, or legal conclusions." Ferrer v. Chevron Corp., 484 F.3d 776, 7 8 0 (5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.

On appeal, the Limitation Petitioners withdraw this basis for dismissal, agreeing with the Claimants that the district court had jurisdiction under 18 U.S.C. § 1333.

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No. 08-30738 2 0 0 5 )); see also Iqbal, 129 S.Ct. at 1940 ("While legal conclusions can provide the c o m p la in t 's framework, they must be supported by factual allegations."). 1. D u t y and Foreseeability

T h e district court held that the Limitation Petitioners owed no duty to the C la im a n t s , and therefore were not liable, because the individual dredgers could n o t have foreseen that discrete acts of negligent dredging could have resulted in t h e "absolutely devastating and cataclysmic damages that occurred to St. B e r n a r d and Orleans Parishes." O n appeal, Claimants contend that their damages were foreseeable b e c a u s e it is well known, as a matter of general knowledge, that the wetlands p r o v id e storm surge mitigation; that the levees protecting cities and towns in the c o a s t a l areas were designed with the assumption that the buffering action p r o v id e d by the wetlands would remain intact; and that dredging activities cause d a m a g e to the wetlands. Accordingly, they contend, the district court erred in h o ld in g that the Limitation Petitioners did not and could not have foreseen that flo o d in g could result from the damage to the wetlands caused by their m a in t e n a n c e dredging operations. Additionally, the Claimants contend that the district court erroneously d i s r e g a r d e d the Securities and Exchange Commission ("SEC") 10-K filings of G r e a t Lakes Dredge & Dock Co. ("Great Lakes"), one of the Limitation P e t it io n e r s , that the Claimants submitted to the district court in post-hearing b r i e f i n g . The Claimants argue that in portions of these filings, Great Lakes a c k n o w le d g e s that its operations carry environmental risks, including flooding; t h a t its operations are subject to various environmental laws and regulations r e la t e d to the prevention of environmental damage, including damage to the w e t la n d s ; and that erosion to Louisiana wetlands has increased the region's e x p o s u r e to hurricanes. The Claimants contend that these statements contradict th e Limitation Petitioners' assertion that the flooding that caused the Claimants' 13

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No. 08-30738 in ju r ie s was not foreseeable. The district court concluded that these documents w e r e "rather standard SEC filings," and that Great Lakes' acknowledgment that i t s operating risks include flooding "does not indicate that Great Lakes could fo r e s e e the catastrophic damages alleged here under the test set forth in C o n s o lid a te d Aluminum." The parties agree that maritime law governs the Claimants' claims, which r e la t e to the Limitation Petitioners' conduct of operations on a navigable w a t e r w a y . See Creppel v. Shell Oil Co., 738 F.2d 699, 701 (5th Cir. 1984) (torts o c c u r r in g in navigable waters are governed by maritime law). "[N]egligence is a n actionable wrong under general maritime law," and the elements of that tort a r e "essentially the same as land-based negligence under the common law." Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005). To state a c la im for relief under maritime law, the "plaintiff must `demonstrate that there w a s a duty owed by the defendant to the plaintiff, breach of that duty, injury s u s t a in e d by [the] plaintiff, and a causal connection between the defendant's c o n d u c t and the plaintiff's injury.'" Canal Barge Co. v. Torco Oil Co., 220 F.3d 3 7 0 , 376 (5th Cir. 2000) (quoting In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5 t h Cir. 1991)) (alteration in original). "Determination of the tortfeasor's duty is a question of law and thus a fu n c tio n of the court that we review de novo." Miss. Dep't of Transp. v. Signal I n t'l LLC (In re Signal Int'l LLC), 579 F.3d 478, 490 (5th Cir. 2009). Under m a r it im e law, a plaintiff is owed a duty of ordinary care under the c ir c u m s t a n c e s .10 Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980).

Claimants argue at length on appeal that we can derive a duty of care in this case from provisions in the Limitation Petitioners' contracts with the Corps of Engineers and in various allegedly applicable federal and state statutes, citing Galentine v. Estate of Stekervetz, 273 F. Supp. 2d 538, 544 (D.Del. 2003) ("in admiralty, the duty of care may be derived from: 1) duly enacted laws, regulations, and rules; 2) custom; or 3) the dictates of reasonableness and prudence."). They contend that the Limitation Petitioners' violations of these provisions constituted a breach of duty under maritime law. Because we agree with the district court

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No. 08-30738 T h e determination of the existence and scope of a duty "involves a number of fa c t o r s , including most notably the foreseeability of the harm suffered by the c o m p la in in g party." Consol. Aluminum, 833 F.2d at 67. Duty "may be owed only w it h respect to the interest that is foreseeably jeopardized by the negligent c o n d u c t ." Id. Thus, if the injuries suffered allegedly as a result of the Limitation P e t it io n e r s ' negligent dredging were not foreseeable, the Limitation Petitioners o w e d no duty to the Claimants and are not liable as a matter of law. I n the context of maritime torts, we have considered harm to be a fo r e s e e a b le consequence of an act or omission if harm of a general sort to persons of a general class might have b e e n anticipated by a reasonably thoughtful person, as a probable r e s u lt of the act or omission, considering the interplay of natural fo r c e s and likely human intervention. Id. at 68. To show that the individual Limitation Petitioners are liable in the in s t a n t case, the Claimants would have to show that each Limitation Petitioner r e a s o n a b ly should have foreseen that the sequence of events leading to their d a m a g e s -- t h e amplification of the storm surge during Hurricane Katrina, the fa ilu r e of the levee systems, and the subsequent flooding of Orleans and St. B e r n a r d Parishes--would be a probable result of its negligent acts and the m a r g in a l erosion to the wetlands caused thereby. See Consol. Aluminum, 833 F .2 d at 68 (harm is not foreseeable unless it "might have been anticipated by a r e a s o n a b ly thoughtful person, as a probable result of the act or omission") (e m p h a s is added); Republic of France v. United States, 290 F.2d 395, 401 (5th

that the damages alleged to result from the Limitation Petitioners' actions were not reasonably foreseeable, we need not determine whether we can look to these statutory and contractual provisions to establish whether the Limitation Petitioners' conduct amounted to a breach of a duty of care. See Daigle, 616 F.2d at 827 (a defendant's failure to fulfill a duty of care under maritime law "does not breach that duty, . . . unless the resultant harm is reasonably foreseeable").

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No. 08-30738 C ir . 1961) (a defendant must have "`knowledge of a danger, not merely possible, b u t probable'") (quoting Dalehite v. United States, 346 U.S. 15, 42 (1953)). W e have on several occasions examined foreseeability of harm in the c o n t e x t of maritime torts. In Consolidated Aluminum Corp. v. C.F. Bean Corp., t h e plaintiff sued to recover for physical damage caused to its manufacturing fa c ilit ie s and attendant economic loss due to the disruption of its supply of n a t u r a l gas. 833 F.2d at 66. The disruption was caused when the defendant's d r e d g e negligently ruptured a natural gas pipeline, causing the natural gas p r o v id e r to close the nearest valves to stem the flow of escaping gas. Id. We r e fu s e d to impose liability because we were "not persuaded that [the defendant] c o u ld have anticipated that its failure to follow safe dredging practices would lik e ly result in physical damage to the equipment and work-in-progress at [the p la in t iff's ] aluminum reduction plant several miles away." e x p la in e d : T h e harm was not of a general sort expected to follow from the fa ilu r e to dredge carefully in proximity to a gas pipeline. Injury to p r o p e r t y and persons from the escaping gas, or from a fire which m ig h t have ensued, would be examples of consequences that would b e foreseeable. . . . But the damage arising from the loss of natural g a s supply, in turn causing the shut down of electric turbines, in t u r n causing a loss of electric power vital to the aluminum reduction p r o c e s s , with the ultimate result being substantial damage to e q u ip m e n t and product-in-process, goes beyond the pale of general h a r m which reasonably might have been anticipated by negligent d red gers. I d . We therefore concluded as a matter of law that no duty was owed with r e s p e c t to the damages suffered. W e applied the standard articulated in Consolidated Aluminum in Lloyd's L e a s in g Ltd. v. Conoco, 868 F.2d 1447 (5th Cir. 1989). There, the plaintiffs, o w n e r s of property seventy miles from the site of an oil spill, sued for damages r e s u lt in g after the oil washed ashore and was tracked onto their properties from Id. at 68. We

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No. 08-30738 t h e beach by vacationers. Id. at 1448. We concluded that the harm suffered by t h e plaintiffs was not foreseeable because most of the area in which the oil might p la u s ib ly have washed ashore was undeveloped. Id. at 1449. We held that a lt h o u g h "the [defendant] might reasonably anticipate that the oil would p r o b a b ly wash ashore somewhere, it had no reason to have anticipated that the o il would probably wash ashore in a heavily populated area and then be tracked in t o businesses and homes." Id. In each case, this court found the causal connection between the alleged n e g lig e n c e and the resulting harm to be too attenuated to be foreseeable as a m a t t e r of law. To be foreseeable, the harm alleged must bear some proximate r e la t io n s h ip with the negligent conduct such that it can reasonably be said to be w it h in the "scope of the risk" created by that conduct. Consol. Aluminum, 833 F .2 d at 67. For instance, in In re Signal International LLC, where negligentlym o o r e d barges broke free and allided with a bridge during Hurricane Katrina, w e found that the bridge was within the general class of fixed structures in the low-lying a r e a s near the Pascagoula River against which [the defendant v e s s e ls ] could foreseeably allide when propelled by the anticipated s t o r m surge, and the general class of persons for which the harm of a llis io n was foreseeable were those possessing fixed or other p r o p e r t y within the path of the anticipated surge. 579 F.3d at 492. We distinguished that case from Consolidated Aluminum and L lo y d 's Leasing, noting, "the harms in those cases did not arise from the risk of d a n g e r created by negligence and instead involved [an] improbable interplay of n a t u r a l and human forces . . . and the party at fault was able to identify events t h a t would not have been foreseen by a reasonable person." Id. at 495 n.19. We agree with the district court that the harm suffered by the Claimants w a s not a foreseeable consequence of the Limitation Petitioners' allegedly n e g lig e n t dredging operations. Whereas in Signal, the negligent barge-owner

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No. 08-30738 a n t ic ip a t e d Hurricane Katrina's approach and failed to secure the barges to w it h s t a n d the expected storm surge, the Limitation Petitioners in this case had n o knowledge of an immediate and pending natural disaster that would affect h o w they conducted their dredging operations. Furthermore, it cannot be said t h a t any dredger could have foreseen that performing its dredging activities n e g lig e n t ly -- a s opposed to in conformity with the Corps of Engineers' s p e c ific a t io n s -- would probably result in the series of events culminating in the c a t a s t r o p h ic damages that occurred during Hurricane Katrina. No reasonable d r e d g e r could have anticipated that its negligence would make the difference b e tw e e n the levee systems holding or failing in the event of a hurricane. The d a m a g e s alleged here are "beyond the pale of general harm which reasonably m ig h t have been anticipated by negligent dredgers." Consol. Aluminum, 833 F .2 d at 68. This is not to say that it could never be foreseen that dredging could create c o n d itio n s that would result in flooding after a hurricane. Rather, we find that it was not foreseeable that the marginal erosion caused by any act of negligence b y a Limitation Petitioner would substantially affect the impact of the hurricane s u c h that the failure of the levee systems and subsequent flooding would be the p r o b a b le result.1 1 The causal sequence alleged in the present case is far more a t t e n u a t e d than the causal sequences described in Consolidated Aluminum and

The Claimants allege that the Limitation Petitioners dredged negligently, but do not allege whether all or only part of their activities were negligent. Even if all of the Limitation Petitioners' dredging activities were performed negligently, however, the Claimants allege that the Limitation Petitioners dredged at various times over thirteen years at various points along the seventy-six mile course of the MRGO. Simply put, the Claimants' injuries are too remote from these alleged acts of negligence to have "arise[n] from the risk of danger created by [the] negligence." Signal Int'l, 579 F.3d at 495 n.19.

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No. 08-30738 L l o y d 's Leasing, in both of which we held as a matter of law that the harm a lle g e d was not foreseeable.12 2. C a u s a t io n and Group Liability

"Under the general maritime law, a party's negligence is actionable only if it is the `legal cause' of the plaintiff's injuries," which is "something more than `b u t for' causation [--]the negligence must be a substantial factor" in causing the in ju r ie s . Donaghey v. Ocean Drilling & Explor. Co., 974 F.2d 646, 649 (5th Cir. 1 9 9 2 ). The district court noted that, according to the pleadings, most of the e r o s i o n of the wetlands and the attendant weakening of the natural buffer p r o t e c t in g New Orleans from storm surge and flooding is attributable to the very e x is t e n c e of the MRGO, and to maintenance dredging by the Corps of Engineers fo r decades prior to any actions by the Limitation Petitioners. The Corps of E n g in e e r s dredged the MRGO exclusively from 1965 to 1993, after which it a w a r d e d contracts to numerous private dredgers, including the Limitation P e t it io n e r s . The Claimants themselves assert in their pleadings that by the 1 9 9 0 s , when the Limitation Petitioners first began to dredge the MRGO, "the p r o je c t was [already] widely characterized as an environmental disaster, a lt h o u g h adverse environmental impacts from the MRGO were evident as early a s the late 1960s." Yet the Claimants contend that their damages resulted--not fr o m the existence of the MRGO or from any non-negligent dredging performed b y the Corps of Engineers or the Limitation Petitioners--but from the additional
As the district court noted, this case bears some similarities to Barasich v. Columbia Gulf Transmission Co., 467 F. Supp. 2d 676 (E.D. La. 2006), in which the plaintiffs alleged that damage to wetlands caused by the exploration and extraction efforts of numerous oil and gas companies contributed significantly to the destructive impact of Hurricane Katrina. Applying Louisiana tort law but citing Consolidated Aluminum, the court concluded as a matter of law that the defendants did not owe a duty to the plaintiffs because the connection between the harm alleged--extensive flooding after a significant hurricane--and the defendants' behavior--allegedly negligent acts in connection with oil exploration and production that resulted in harm to wetlands--was too attenuated. Id. at 692.
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No. 08-30738 m a r g in a l erosion caused when the Limitation Petitioners deviated from the s t a n d a r d s set out in the Corps of Engineers contracts and in various rules and r e g u la tio n s alleged to apply to their dredging operations. A c c o r d in g ly , the district court found that the Claimants could not d e m o n s t r a t e that any individual dredger's actions were a substantial cause of a n y of the Claimants' damages. The district court found that "the pleadings d e m o n s t r a t e that it would be virtually impossible that the act of one dredger s o m e t im e after 1993 was a cause of the damages. At the very best, plaintiffs w o u ld have to show that the cumulative action of all of the dredgers was a c a u s e ." The court concluded that the Claimants must therefore rely on a theory o f group liability which we have never recognized or applied under maritime law. Claimants clarify on appeal that they are not urging a group liability t h e o r y , alleging rather that "each Limitation Petitioner caused its own separate d a m a g e , while dredging different sections of the MRGO, under separate c o n t r a c ts , in different years," and that "[e]ach may or may not have caused d a m a g e and each is liable only for the damage it caused." However, the

C la im a n t s ' pleadings lack sufficient factual allegations to state a claim against a n y individual dredger. Twombly, 550 U.S. at 555. As the district court stated, " t h e Claimants' pleadings do not differentiate among the dredgers, do not state w h e r e the dredging activities took place, [and] do not state whether all or part o f the dredging activities conducted by the [Limitation Petitioners] were n e g lig e n t ." Simply put, the Claimants' pleadings do not assert a causal relation b e tw e e n any of the Limitation Petitioners' dredging operations and any of the C la im a n t s ' damages, much less that any negligent act was a substantial cause th e r e of. III. CONCLUSION F o r the above reasons, we AFFIRM the judgment of the district court.

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