REVISED NOVEMBER 4, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30738

In Re: In the Matter of the Complaint of GREAT LAKES DREDGE & DOCK

COMPANY LLC, As Owner of the dredges California, Manhattan Island,

Padre Island, and Alaska, and as owner pro hac vice of the Dredge

Texas from Exoneration from the Limitation of Liability

-----------------------------------

GREAT LAKES DREDGE & DOCK COMPANY, As owner of the dredges

California, Manhattan Island, Padre Island, and Alaska, and as owner pro hac

vice of the Dredge Texas

Petitioner - Appellee

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED; MARGUERITE ABRAHMS; ET AL

Claimants - Appellants

--------------------------------------

In Re: In the Matter of the Complaint of MIKE HOOKS INC, as owner

of the Dredge Missouri H

Petitioner - Appellee

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED

Claimants - Appellants

---------------------------------------

United States Court of Appeals

Fifth Circuit

F I L E D

October 14, 2010

Lyle W. Cayce

Clerk
No. 08-30738

2

In Re: In the Matter of the Complaint of T L JAMES & COMPANY INC,

as owner of the dredges Tom James and George D Williams II praying

exoneration from or limitation of liability

Petitioner - Appellee

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED

Claimants - Appellants

----------------------------------------

In Re: In the Matter of the Complaint of GULF COAST TRAILING COMPANY,

a Louisiana Partnership, as owner of the dredge Ouachita, praying for

exoneration from or limitation of liability; TLJIC LLC, a partner therein as

owner of the dredge Ouachita praying for exoneration from or limitation of

liability

Petitioners - Appellees

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED

Claimants - Appellants

-----------------------------------------

In Re: In the Matter of the Complaint of MANSON CONSTRUCTION

COMPANY, as owner and operator of the Hopper Dredges Newport

and Bayport, for exoneration from or limitation of liability

Petitioner - Appellee

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED
No. 08-30738

3

Claimants - Appellants

-----------------------------------------

In Re: In the Matter of the Complaint of LUHR BROS INC, as

owner of Spud Barge L-1101, Spud Barge L-1103 and M/V Michael A

and as owner Pro Hac Vice of M/V Charlie B praying for exoneration

from or limitation of liability

Petitioner - Appellee

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED

Claimants - Appellants

------------------------------------------

In Re: In the Matter of the Complaint of KING FISHER MARINE

SERVICE L P as owner of the Dredges Leonard M Fisher and Everett

Fisher

Petitioner - Appellee

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED

Claimants - Appellants

------------------------------------------

In Re: In the Matter of the Complaint of PINE BLUFF SAND AND

GRAVEL COMPANY as owner and operator of dredge Marion praying for

exoneration from or limitation of liability

Petitioner - Appellee

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED
No. 08-30738

4

Claimants - Appellants

-------------------------------------------------

In Re: In the Matter of the Complaint of WEEKS MARINE INC

as owner of the Dredges B E Lindholm, George D Williams, Weeks

262 and BT 208

Petitioner - Appellee

v.

LOUISIANA STATE; ORLEANS PARISH SCHOOL BOARD; DEBBIE M

THOMAS RICHARDSON; PHILLIP REED

Claimants - Appellants 

Appeal from the United States District Court

for the Eastern District of Louisiana

No. 2:06-CV-8676

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.

KING, Circuit Judge: 

In this consolidated limitation action, Claimants, Hurricane Katrina flood

victims, filed claims against the Limitation Petitioners, private companies that

operated twenty-two dredging vessels along the Mississippi River Gulf Outlet

pursuant to contracts with the United States Army Corps of Engineers.

Claimants suffered damages from the flooding of Orleans and St. Bernard

Parishes when several levee systems failed as a result ofthe erosion of protective

wetlands allegedly caused by the Limitation Petitioners’ negligent maintenance

dredging operations. The Limitation Petitioners moved to dismiss the claims

under FEDERALRULES OFCIVIL PROCEDURE 12(b)(1) and 12(c). The district court

granted the motion to dismiss, finding that the Limitation Petitioners owed no

duty to the Claimants because the devastation caused by Hurricane Katrina was
No. 08-30738

5

not a foreseeable result of the allegedly negligent conduct of any Limitation

Petitioner. Claimants timely appealed. We affirm the judgment of the district

court.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Mississippi River Gulf Outlet (“MRGO”) is a 76-mile navigational

channel that connects the Gulf of Mexico with the Industrial Canal in New

Orleans, bisecting the marshy wetlands of St. Bernard Parish and Chandeleur

Sound. It was built between 1958 and 1965 by the United States Army Corps

of Engineers (“Corps of Engineers”) pursuant to congressional authorization.

From 1965 to 1993, the Corps of Engineers performed maintenance dredging to

maintain the navigability of the MRGO. Beginning in 1993, the Corps of

Engineers contracted with numerous private dredging companies, including the

Limitation Petitioners, to assist the Corps of Engineers in maintenance dredging

along the MRGO. From 1999 to 2004, the Corps of Engineers awarded 154

contracts to private dredging companies, many to the Limitation Petitioners, to

dredge the length of the MRGO channel. 

Claimants in the present action, who number in the tens ofthousands, are

individuals, businesses, and other entities who own property that was damaged

due to flooding after Hurricane Katrina made landfall on August 29, 2005. They

contend that the Limitation Petitioners’ maintenance dredging operations

caused severe damage to the Louisiana wetlands, which provide a natural

barrier against tidal surge from storms and hurricanes. This damage to the

wetlands caused an amplification of the storm surge in the New Orleans region

during Hurricane Katrina, which increased the pressure on the levees and flood

walls along the MRGO, leading to levee breaches and the subsequent flooding

of St. Bernard Parish and Orleans Parish. 
No. 08-30738

1 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.

2 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.

3 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

6

Prior to the instant action, two separate class action suits (“Reed” and

“Ackerson”) were filed in the District Court for the Eastern District of Louisiana

by plaintiffs seeking damages from the United States and from private

companies that performed maintenance dredging in the MRGO pursuant to

government contracts. After consolidation of the Reed and Ackerson suits, the

government and the defendant dredgers moved to dismiss.

Before the district court ruled on the defendants’ motions, several of the

dredgers filed petitions in the Eastern District of Louisiana under the Limitation

of Liability Act, 46 U.S.C. § 30511, seeking exoneration from and/or limitation

of liability for all claims for any damages arising out of Hurricane Katrina as a

result of their maintenance dredging activities for the Corps of Engineers.1 The

limitation actions were consolidated into the present case (the “limitation

action”) and transferred to the judge presiding over the Reed and Ackerson suits.

The district court subsequently granted the motions to dismiss the claims

against the government and the defendant dredgers in the Reed and Ackerson

suits.

2 See In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2007 WL

763742 (E.D. La. Mar. 9, 2007). The district court dismissed the claims against

the government for lack of subject matter jurisdiction.3Id. at *2. The district
No. 08-30738

U.S.C. § 30101(c). This ruling was not appealed.

4 309 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 20–21. 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. 

5 487 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 aboutthe dangers in the use ofthe equipmentthat 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 suchcontractswithdue 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.

7

court dismissed the claims against the dredging companies under the

government contractor immunity doctrines articulated in Yearsley v. W.A. Ross

Construction Co.4 and Boyle v. United Technologies Corp.

5 The district court

found that, because the dredging companies were alleged to have performed

their contracts in conformity with the Corps of Engineers’ specifications, and

were not alleged to have performed negligently or absent due care,the dredgers,

as government contractors, were immune from liability for any damages caused

by their dredging operations for the Corps of Engineers. In re Katrina, 2007 WL

763742, at *3–4. We affirmed on appeal, finding that the pleadings “attack

Congress’s policy of creating and maintaining the MRGO, not any separate act

of negligence by the Contractor Defendants,” and therefore the district court did

not err in dismissing the action on the basis that Yearsley immunity applied.

See Ackerson, 589 F.3d at 207.
No. 08-30738

6

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 208–09.

8

Following dismissal of the class action suits, Claimants filed claims

against the dredgers in the limitation action. Many of the claims asserted in the

limitation action were substantially similar to those brought against the

dredgers in the Reed and Ackerson suits. But the Claimants also added new

allegations of negligence to defeat the dredgers’ government contractor

immunity defenses, as well as the dredgers’ entitlement to exoneration from or

limitation of liability under the Limitation of Liability Act. Specifically, they

alleged that the Limitation Petitioners “failed to perform their dredging work

with due care” and that they “performed their dredging work in the MRGO

negligently.” Claimants also alleged that the Limitation Petitioners violated

requirements imposed by their contracts with the Corps of Engineers and by

various federal and state statutes and regulations:

28. Limitation Petitioners and the Vessels failed to follow

requirements of 33 CFR Parts 335–38, particularly 33 CFR

336.1(c)(4) and 33 CFR 320.4(b) and Executive Order No.

11990 made applicable thereby.

29. Limitation Petitioners and the Vessels deviated from and/or

failed to execute their dredging activities in the manner

required by the Corps of Engineers, or by reasonably precise

specifications issued by the Corps of Engineers (if they were

issued) and/or by Nationwide Permits, specific permits, or

general authorizations for dredging issued by or obtained by

the Corps of Engineers pursuant to 33 CFR 337.5 and 338.2,

and all other regulations that Limitation Petitioners and the

Vessels were required to follow. 

30. Limitation Petitioners and the Vessels failed to follow

Louisiana State dredging requirements (made applicable by

33 CFR 337.2), including those contained in Chapter 7,

Sections 701 and 707 of the Louisiana Administrative Code

related to dredging activities.6
No. 08-30738

9

31. Limitation 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

that their injuries resulted from the erosion to the wetlands caused by the

Limitation Petitioners’ negligent dredging, performed in breach ofthe standards

set out in their Corps of Engineers contracts and various rules and regulations

alleged to apply to their operations, rather than from the very existence of the

MRGO or by any non-negligent dredging performed by the Corps of Engineers

or the Limitation Petitioners in conformity with their government contracts.

The Limitation Petitioners moved to dismiss under Rule 12(b)(1) and Rule

12(c). The district court granted the motion, holding as a matter of law that the

Limitation Petitioners did not owe a duty to the Claimants, and were therefore

not liable, because the Claimants’ hurricane damages were not the legally

foreseeable consequence of the Limitation Petitioners’ allegedly negligent

dredging activities. Relying on a standard that we articulated in Consolidated

Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65 (5th Cir. 1987), the district
No. 08-30738

7 The Limitation Petitioners also argued that the Claimants’ allegations in the instant

action are practically identicalto those thatthe 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. 

10

court held that the harm was too attenuated from the alleged cause to be legally

foreseeable, noting:

Itis simply inconceivable to this Court why discrete acts of dredging

after 1993 by the myriad dredgers would be sufficient for the

specific dredger to foresee the absolutely devastating and

cataclysmic damages that occurred to St. Bernard and Orleans

Parishes. Simply put, the Limitation Dredgers could not have

anticipated that its alleged negligent dredging would be a cause

thereof. 

Furthermore, the district court held that the pleadings failed sufficiently to

allege a causal connection between any of the Limitation Petitioners’ alleged

negligent 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

reference to causation. Claimants have cited no case in the maritime law

context where a group liability theory has been recognized or applied.” The

district court concluded, “[t]o recover on this theory would obviate proof of

individual causation and [the theory] is therefore fatally flawed.”7 Claimants

timely appealed. 

II. DISCUSSION

A. Rule 12(b)(1) 

The Claimants argue on appeal that the district court erred in dismissing

their claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction,

asserting that the district court had jurisdiction over their claims under 28
No. 08-30738

8

“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).

11

U.S.C. § 1333.8 Alternatively, they argue that, had the district court lacked

jurisdiction, it erred in reaching the merits of their claims and dismissing them

with prejudice under Rule 12(c) for failure to state a claim.

The Claimants are correct that when, as here, “a Rule 12(b)(1) motion is

filed in conjunction with other Rule 12 motions, the court should consider the

Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits[

. . . ] to prevent[ ] a court without jurisdiction from prematurely dismissing a

case with prejudice.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.

2001). Furthermore, they correctly note that if the district court had held that

it lacked subject matter jurisdiction, it should have entered dismissal without

prejudice to allow the Claimants to retry their claims in a court with jurisdiction

to hear them. See id. (“The court’s dismissal of a plaintiff’s case because the

plaintiff lacks subject matter jurisdiction is not a determination of the merits

and does not prevent the plaintiff from pursuing a claim in a court that does

have proper jurisdiction.”). 

However, it is clear from the substance of the district court’s opinion that

the 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

granting the motion to dismiss, the entirety of the district court’s analysis

addressed the merits of the Claimants’ pleadings. The district court stated no

basis for dismissal under Rule 12(b)(1), and we agree with the Claimants that

none exists. Accordingly, because the district court did not hold that it lacked

subject matter jurisdiction, and as there is no basis for such a holding, the

district court did not err in entering dismissal with prejudice on the merits
No. 08-30738

9 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. 

12

under Rule 12(c). We therefore conclude that the district court’s reference to

Rule 12(b)(1) does not provide a basis for reversal.9

B. Rule 12(c) 

We review de novo a district court’s ruling on a Rule 12(c) motion for

judgment on the pleadings. Great Plains Trust Co. v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (citing Hughes v. Tobacco Inst.,

Inc., 278 F.3d 417, 420 (5th Cir. 2001)). A motion under Rule 12(c) for failure to

state a claim is subject to the same standards as a motion to dismiss under Rule

12(b)(6). Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Great Plains

Trust Co., 313 F.3d at 313 n.8.

To avoid dismissal, “a complaint must contain sufficient factual matter,

accepted 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

must be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555. In deciding whether the complaint states a valid claim for

relief, we accept all well-pleaded facts as true and construe the complaint in the

light most favorable to the plaintiff. MySpace, 528 F.3d at 418 (citing Hughes,

278 F.3d at 420). We do not accept as true “conclusory allegations, unwarranted

factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776,

780 (5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.

2005)); see also Iqbal, 129 S.Ct. at 1940 (“While legal conclusions can provide the

complaint’s framework, they must be supported by factual allegations.”).

1. Duty and Foreseeability
No. 08-30738

13

The district court held that the Limitation Petitioners owed no duty to the

Claimants, and therefore were not liable, because the individual dredgers could

not have foreseen that discrete acts of negligent dredging could have resulted in

the “absolutely devastating and cataclysmic damages that occurred to St.

Bernard and Orleans Parishes.”

On appeal, Claimants contend that their damages were foreseeable

because it is well known, as a matter of general knowledge, that the wetlands

provide storm surge mitigation;thatthe levees protecting cities and towns in the

coastal areas were designed with the assumption that the buffering action

provided by the wetlands would remain intact; and that dredging activities cause

damage to the wetlands. Accordingly, they contend, the district court erred in

holding that the Limitation Petitioners did not and could not have foreseen that

flooding could result from the damage to the wetlands caused by their

maintenance dredging operations. 

Additionally, the Claimants contend that the district court erroneously

disregarded the Securities and Exchange Commission (“SEC”) 10-K filings of

Great Lakes Dredge & Dock Co. (“Great Lakes”), one of the Limitation

Petitioners, that the Claimants submitted to the district court in post-hearing

briefing. The Claimants argue that in portions of these filings, Great Lakes

acknowledges that its operations carry environmental risks, including flooding;

that its operations are subject to various environmental laws and regulations

related to the prevention of environmental damage, including damage to the

wetlands; and that erosion to Louisiana wetlands has increased the region’s

exposure to hurricanes. The Claimants contend that these statements contradict

theLimitation Petitioners’ assertion that the flooding that caused the Claimants’

injuries was not foreseeable. The district court concluded that these documents

were “rather standard SEC filings,” and that GreatLakes’ acknowledgmentthat

its operating risks include flooding “does not indicate that Great Lakes could
No. 08-30738

10 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

thatthe damages alleged to resultfrom theLimitationPetitioners’ actionswerenot 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

14

foresee the catastrophic damages alleged here under the test set forth in

Consolidated Aluminum.” 

The parties agree that maritime law governs the Claimants’ claims, which

relate to the Limitation Petitioners’ conduct of operations on a navigable

waterway. See Creppel v. Shell Oil Co., 738 F.2d 699, 701 (5th Cir. 1984) (torts

occurring in navigable waters are governed by maritime law). “[N]egligence is

an actionable wrong under general maritime law,” and the elements of that tort

are “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

claim for relief under maritime law, the “plaintiff must ‘demonstrate that there

was a duty owed by the defendant to the plaintiff, breach of that duty, injury

sustained by [the] plaintiff, and a causal connection between the defendant’s

conduct and the plaintiff’s injury.’” Canal Barge Co. v. Torco Oil Co., 220 F.3d

370, 376 (5th Cir. 2000) (quoting In re Cooper/T. Smith, 929 F.2d 1073, 1077

(5th Cir. 1991)) (alteration in original).

“Determination of the tortfeasor’s duty is a question of law and thus a

function of the court that we review de novo.” Miss. Dep’t of Transp. v. Signal

Int’l LLC (In re Signal Int’l LLC), 579 F.3d 478, 490 (5th Cir. 2009). Under

maritime law, a plaintiff is owed a duty of ordinary care under the

circumstances.10 Daigle v.PointLanding, Inc., 616F.2d 825, 827 (5th Cir. 1980).
No. 08-30738

foreseeable”).

15

The determination of the existence and scope of a duty “involves a number of

factors, including most notably the foreseeability of the harm suffered by the

complaining party.” Consol. Aluminum, 833F.2d at 67. Duty “may be owed only

with respect to the interest that is foreseeably jeopardized by the negligent

conduct.” Id. Thus, if the injuries suffered allegedly as a result of the Limitation

Petitioners’ negligent dredging were not foreseeable, the Limitation Petitioners

owed no duty to the Claimants and are not liable as a matter of law.

In the context of maritime torts, we have considered harm to be a

foreseeable consequence of an act or omission

if harm of a general sort to persons of a general class might have

been anticipated by a reasonably thoughtful person, as a probable

result of the act or omission, considering the interplay of natural

forces and likely human intervention. 

Id. at 68. To show that the individual Limitation Petitioners are liable in the

instant case, the Claimants would have to show that each Limitation Petitioner

reasonably should have foreseen that the sequence of events leading to their

damages—the amplification of the storm surge during Hurricane Katrina, the

failure of the levee systems, and the subsequent flooding of Orleans and St.

Bernard Parishes—would be a probable result of its negligent acts and the

marginal erosion to the wetlands caused thereby. See Consol. Aluminum, 833

F.2d at 68 (harm is not foreseeable unless it “might have been anticipated by a

reasonably thoughtful person, as a probable result of the act or omission”)

(emphasis added); Republic of France v. United States, 290 F.2d 395, 401 (5th

Cir. 1961) (a defendant must have “‘knowledge of a danger, not merely possible,

but probable’”) (quoting Dalehite v. United States, 346 U.S. 15, 42 (1953)).

We have on several occasions examined foreseeability of harm in the

context of maritime torts. In Consolidated Aluminum Corp. v. C.F. Bean Corp.,
No. 08-30738

16

the plaintiff sued to recover for physical damage caused to its manufacturing

facilities and attendant economic loss due to the disruption of its supply of

natural gas. 833 F.2d at 66. The disruption was caused when the defendant’s

dredge negligently ruptured a natural gas pipeline, causing the natural gas

provider to close the nearest valves to stem the flow of escaping gas. Id. We

refused to impose liability because we were “not persuaded that [the defendant]

could have anticipated that its failure to follow safe dredging practices would

likely result in physical damage to the equipment and work-in-progress at [the

plaintiff’s] aluminum reduction plant several miles away.” Id. at 68. We

explained:

The harm was not of a general sort expected to follow from the

failure to dredge carefully in proximity to a gas pipeline. Injury to

property and persons from the escaping gas, or from a fire which

might have ensued, would be examples of consequences that would

be foreseeable. . . . But the damage arising from the loss of natural

gas supply, in turn causing the shut down of electric turbines, in

turn causing a loss of electric power vitalto the aluminum reduction

process, with the ultimate result being substantial damage to

equipment and product-in-process, goes beyond the pale of general

harm which reasonably might have been anticipated by negligent

dredgers.

Id. We therefore concluded as a matter of law that no duty was owed with

respect to the damages suffered.

We applied the standard articulated in Consolidated Aluminum inLloyd’s

Leasing Ltd. v. Conoco, 868 F.2d 1447 (5th Cir. 1989). There, the plaintiffs,

owners of property seventy miles from the site of an oil spill, sued for damages

resulting after the oil washed ashore and was tracked onto their properties from

the beach by vacationers. Id. at 1448. We concluded that the harm suffered by

the plaintiffs was notforeseeable because most of the area in which the oil might

plausibly have washed ashore was undeveloped. Id. at 1449. We held that

although “the [defendant] might reasonably anticipate that the oil would
No. 08-30738

17

probably wash ashore somewhere, it had no reason to have anticipated that the

oil would probably wash ashore in a heavily populated area and then be tracked

into businesses and homes.” Id. 

In each case, this court found the causal connection between the alleged

negligence and the resulting harm to be too attenuated to be foreseeable as a

matter of law. To be foreseeable, the harm alleged must bear some proximate

relationship with the negligent conduct such that it can reasonably be said to be

within the “scope of the risk” created by that conduct. Consol. Aluminum, 833

F.2d at 67. For instance, in In re Signal International LLC, where negligentlymoored barges broke free and allided with a bridge during Hurricane Katrina,

we found that the bridge 

was within the general class of fixed structures in the low-lying

areas near the Pascagoula River against which [the defendant

vessels] could foreseeably allide when propelled by the anticipated

storm surge, and the general class of persons for which the harm of

allision was foreseeable were those possessing fixed or other

property within the path of the anticipated surge. 

579 F.3d at 492. We distinguished that case from Consolidated Aluminum and

Lloyd’s Leasing, noting, “the harms in those cases did not arise from the risk of

danger created by negligence and instead involved [an] improbable interplay of

natural and human forces . . . and the party at fault was able to identify events

that 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

was not a foreseeable consequence of the Limitation Petitioners’ allegedly

negligent dredging operations. Whereas in Signal, the negligent barge-owner

anticipated Hurricane Katrina’s approach and failed to secure the barges to

withstand the expected storm surge, the Limitation Petitioners in this case had

no knowledge of an immediate and pending natural disaster that would affect

how they conducted their dredging operations. Furthermore, it cannot be said
No. 08-30738

11 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 activitieswere 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. 

12 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

18

that any dredger could have foreseen that performing its dredging activities

negligently—as opposed to in conformity with the Corps of Engineers’

specifications— would probably result in the series of events culminating in the

catastrophic damages that occurred during Hurricane Katrina. No reasonable

dredger could have anticipated that its negligence would make the difference

between the levee systems holding or failing in the event of a hurricane. The

damages alleged here are “beyond the pale of general harm which reasonably

might have been anticipated by negligent dredgers.” Consol. Aluminum, 833

F.2d at 68.

This is notto say thatit could never be foreseen that dredging could create

conditions 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

by aLimitation Petitioner would substantially affectthe impact ofthe hurricane

such that the failure of the levee systems and subsequent flooding would be the

probable result.11 The causal sequence alleged in the present case is far more

attenuated than the causal sequences described in Consolidated Aluminum and

Lloyd’s Leasing, in both of which we held as a matter of law that the harm

alleged was not foreseeable.

12
No. 08-30738

production that resulted in harm to wetlands—was too attenuated. Id. at 692.

19

2. Causation 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

‘butfor’ causation [—]the negligence must be a substantial factor”in causing the

injuries. Donaghey v. Ocean Drilling & Explor. Co., 974 F.2d 646, 649 (5th Cir.

1992). 

The district court noted that, according to the pleadings, most of the

erosion of the wetlands and the attendant weakening of the natural buffer

protecting New Orleans from storm surge and flooding is attributable to the very

existence of the MRGO, and to maintenance dredging by the Corps of Engineers

for decades prior to any actions by the Limitation Petitioners. The Corps of

Engineers dredged the MRGO exclusively from 1965 to 1993, after which it

awarded contracts to numerous private dredgers, including the Limitation

Petitioners. The Claimants themselves assert in their pleadings that by the

1990s, when the Limitation Petitioners first began to dredge the MRGO, “the

project was [already] widely characterized as an environmental disaster,

although adverse environmental impacts from the MRGO were evident as early

as the late 1960s.” Yet the Claimants contend that their damages resulted—not

from the existence of the MRGO or from any non-negligent dredging performed

by the Corps of Engineers or theLimitation Petitioners—butfrom the additional

marginal erosion caused when the Limitation Petitioners deviated from the

standards set out in the Corps of Engineers contracts and in various rules and

regulations alleged to apply to their dredging operations.

Accordingly, the district court found that the Claimants could not

demonstrate that any individual dredger’s actions were a substantial cause of

any of the Claimants’ damages. The district court found that “the pleadings
No. 08-30738

20

demonstrate that it would be virtually impossible that the act of one dredger

sometime after 1993 was a cause of the damages. At the very best, plaintiffs

would have to show that the cumulative action of all of the dredgers was a

cause.” The court concluded that the Claimants must therefore rely on a theory

of group liability which we have never recognized or applied under maritime law.

Claimants clarify on appeal that they are not urging a group liability

theory, alleging rather that “each Limitation Petitioner caused its own separate

damage, while dredging different sections of the MRGO, under separate

contracts, in different years,” and that “[e]ach may or may not have caused

damage and each is liable only for the damage it caused.” However, the

Claimants’ pleadings lack sufficient factual allegations to state a claim against

any individual dredger. Twombly, 550 U.S. at 555. As the district court stated,

“the Claimants’ pleadings do not differentiate among the dredgers, do not state

where the dredging activities took place, [and] do not state whether all or part

of the dredging activities conducted by the [Limitation Petitioners] were

negligent.” Simply put, the Claimants’ pleadings do not assert a causal relation

between any of the Limitation Petitioners’ dredging operations and any of the

Claimants’ damages, much less that any negligent act was a substantial cause

thereof.

III. CONCLUSION

For the above reasons, we AFFIRM the judgment of the district court.