United States Court of Appeals

Fifth Circuit

FILED

November 14, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 05-30908

__________________________

MICHAEL T. FUESTING,

Plaintiff - Appellant,

versus

LAFAYETTE PARISH BAYOU VERMILION DISTRICT; LAFAYETTE INSURANCE

COMPANY,

Defendants - Appellees.

___________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

___________________________________________________

Before SMITH, GARZA, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

In this suit involving the allision of a pleasure boat with a partially submerged and abandoned

shrimp boat, the pleasure boat owner, MichaelFuesting, appealsthe district court’s grant ofsummary

judgment in favor of defendant Lafayette Parish Bayou Vermilion District (the “District”). Fuesting

argues that the district court erred in finding that Louisiana’s governmental statutory immunity law

precluded his general maritime law claim and that the district court erred in finding that the District

was not an “operator” under theWreck Act, therebydismissing Fuesting’s negligence claimpremised

on the Wreck Act. For the following reasons, we reverse. 
1Though dismissed as defendants to Fuesting’s action, the Hatches were brought back into

the suit via a third-party indemnity claim filed by the District.

2

I. FACTS AND PROCEEDINGS

Thislawsuitstemsfromthe July2001 allision between Michael Fuesting’ssmallpleasure boat

and a sunken shrimp boat near a bank of the Vermilion River in Lafayette Parish, Louisiana. Keith

Griffin, the shrimp boat’s owner, had docked the boat in 1994 at a dock owned by Alfred and Joyce

Hatch. The boat was allowed to deteriorate over a number of years, and it eventually sank to the

riverbed. Some ofthe boat remained visible above the waterline. Local citizens eventuallycomplained

to the Lafayette ParishBayou VermilionDistrict about the eyesore created bythe partiallysubmerged

shrimp boat. In January 2001, the District received permission from Griffin to attempt to refloat the

boat and remove it fromthe river. The attempt failed, and the boat remained partially submerged. The

parties dispute the relative success of the District’s attempted removal: The District argues that its

efforts only moved the boat a few feet and rotated it 180 degrees, thus leaving the boat out of the

navigational channel. Fuesting argues that the boat had moved further before again sinking to the

riverbed. At no time before or after the District’s attempted removal wasthe submerged shrimp boat

marked with buoys or lights. 

The allision occurred around sunset on July 3, 2001. Fuesting claimsthat the water level was

higher than usual, such that almost all of the boat wassubmerged. As a result of the allision, Fuesting

was thrown from his boat, knocked unconscious, and injured.

Fuesting sued the District, the District’sinsurer, Lafayette InsuranceCo. (“Lafayette”), along

with other defendants, in December 2002. The other defendants were dismissed from the case.1

Fuesting’s allegations were that the District was a responsible party under the Wreck Act and was
3

negligent under general maritime law. The District, joined by Lafayette, moved for summary

judgment. Fuesting opposed the motion and filed its own motion for partialsummary judgment as to

the claim premised on the Wreck Act. The district court granted summary judgment to the District

as to the Wreck Act violation because the court determined that the evidence provided by Fuesting

could not support a finding that, for Wreck Act purposes, the District was an operator of the shrimp

boat when it attempted to remove it from the river.

The district court found, however, that the District might still be negligent under general

maritime law pursuant to Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955), because it

assumed the duty to the boating public to remove the shrimp boat from the river in a non-negligent

manner. Rather than address the merits of this negligence claim against the District, the court sua

sponte requested briefing on the impact ofLA.REV.STAT. 9:2798.1, which grantsstatutoryimmunity

to public entities for “policymaking or discretionary acts.” The court found that the District, which

the parties agree qualifies as a public entity under the statute, is immune from Fuesting’s general

maritime law negligence claim because that claim arose from discretionary acts of the District. The

district court dismissed all of Fuesting’s claims and dismissed the indemnity claims against the

Hatches as moot. Fuesting filed a timely notice of appeal.

II. STANDARD OF REVIEW

The district court’s grant ofsummary judgment isreviewed de novo. Terrebonne Parish Sch.

Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002). Summary judgment may be granted if

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of

law. Id. (citing FED. R. CIV. P. 56(c)).

III. DISCUSSION
2Section 9:2798.1(B) provides:

Liability shall not be imposed on public entities or their officers or employees

based upon the exercise or performance or the failure to exercise or perform

their policymaking or discretionary acts when such acts are within the course

and scope of their lawful powers and duties.

4

A. Louisiana immunity statute

Asto Fuesting’s generalmaritime law negligence claim, the court granted summaryjudgment

in favor of the District because, in its view, the District’s attempt to move the shrimp boat was a

protected act under LA. REV. STAT. § 9:2798.1(B).2

We must address an important threshold question not addressed by the parties or the district

court: whether a state statute limiting the liability of a municipal entity like the District prevents a

cause of action arising under the admiralty laws of the United States. Over a century ago, the

Supreme Court held that the New York City Fire Department could not employ a New York state

law exempting municipal entities from tort liability to defeat a suit against it in admiralty. Workman

v. City of NewYork, 179 U.S. 552, 557–63 (1900). The Workman Court reasoned that admiralty law

is not displaced by local law; if it were, the uniformity of maritime law would be undermined. Id. at

558–59. The Court then responded to the city’s contention that state law protected it:

The maritime law affords no justification for this contention, and no example isfound

if such law, where one who is subject to suit and amenable to process is allowed to

escape liability for the commission of a maritime tort, upon the theory relied upon[,

state law]. We, of course, concede that where maritime torts have been committed by

the vessels of a sovereign, and complaint has been made in a court of admiralty, that

court has declined to exercise jurisdiction, but this wassolely because ofthe immunity

ofsovereignty from suit in its own courts. . . . [This rule], however, proceed[s] upon

the hypothesis of the want of a person or property before the court over whom

jurisdiction can be exerted. As a consequence, the doctrine above stated rests, not

upon the supposed want of power in courts of admiralty to redress a wrong

committed by one over whom such courts have adequate jurisdiction, but alone on

their inability to give redress in a case where jurisdiction over the person or property

cannot be exerted. . . .
3For thisreason, we do not addressthe parties’ contentions on appeal concerning whetherthe

District’s acts fall within the protection of LA. REV. STAT. § 9:2798.1.

5

[I]t follows that as the municipal corporation of the city of New York, unlike a

sovereign, was subject to the jurisdiction of the court, the claimed exemption from

liability asserted in the case at bar . . . was without foundation in the maritime law,

and therefore afforded no reason for denying redress in a court of admiralty for the

wrong which the courts below both found to have been committed.

Id. at 566, 570. The Workman Court’s holding recognizes that municipalities do not enjoy Eleventh

Amendment sovereign immunity. Recently, that proposition has been invoked more explicitly. See

Jinks v. Richland County, 538 U.S. 456, 466 (2003) (“[M]unicipalities, unlike States, do not enjoy

a constitutionally protected immunity from suit.”). See also N. Ins. Co. of New York v. Chatham

County, — U.S. —, 126 S. Ct. 1689, 1694-95 (2006) (endorsing the “general principle” found in

Workman “that sovereign immunity does not bar a suit against a city” and rejecting a county’s

sovereign immunity defense in an admiralty suit). However, a municipality can be immune from suit

ifit was “acting as an arm of the State, as delineated by [the Supreme] Court’s precedents.” Chatham

County, 126 S. Ct. at 1694 (citing Alden v. Maine, 527 U.S. 706, 756 (1999), and Lake Country

Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 400–01 (1979)). The District, merely

because of itsstatus as a public entity and because it meets the criteria of LA.REV. STAT. § 9:2798.1,

is not immune fromsuit in admiralty. The district court must consider whether the Workman principle

applies.3 We invite the district court to do so upon remand. 

B. The Wreck Act 

The Wreck Act, 33 U.S.C. § 409, provides in relevant part:

[W]henever a vessel, raft or other craft is wrecked and sunk in a navigable channel,

it shall be the duty of the owner, lessee, or operator of such sunken craft to

immediately mark it with a buoy or beacon during the day and, unless otherwise

granted a waiver by the Commandant of the Coast Guard, a light at night, and to
4The agreement contains no reference to the removal of the shrimp boat. However, the

District does not argue that the hold-harmless agreement pertainsto anything other than the removal

of Griffin’s shrimp boat from the Vermilion River.

6

maintain such marks until the sunken craft is removed or abandoned, and the neglect

or failure of the said owner, lessee, or operator so to do shall be unlawful; and it shall

be the duty of the owner, lessee, or operator of such sunken craft to commence the

immediate removal of the same, and prosecute such removal diligently . . . .

The provisions of the Wreck Act thus apply only to owners, lessees, and operators ofsunken crafts.

Fuesting’s position is that the District is an operator. The summary judgment evidence on this point

includes (1) an agreement between Griffin and the District, whereby Griffin agreed to hold harmless

the District4and (2) the District’sfailed attempt to remove the shrimp boat. In response to Fuesting’s

operator argument, the District both below and on appeal points out that the agreement between

Griffin and the District was a mere release of liability and argues that the agreement does not make

the District an operator under the Wreck Act. The court below agreed with the District and held that

the District was at no time an operator of the shrimp boat. In particular, the district court found that:

[T]he agreement between the District and Griffin, and the actions taken by the

District, do not render the District an “operator” of the sunken shrimp boat as that

term was intended under the Wreck Act. Even if the Court determined that the

document signed by Griffin was sufficient to create a towing contract, which it does

not, the fact remains that the boat was never towed anywhere by the District, whose

attempt to move the boat was almost completely unsuccessful.

(footnote omitted). 

Because the district court’s unsupported application ofthe term“operator” istoo narrow, we

disagree with its finding that the District was not an operator under the Wreck Act. Indeed, the

district court’s narrow interpretation of responsible parties runs counter to the original purpose of

the Act and the purpose of the 1986 amendment.

A purpose of the Wreck Act was to facilitate the marking or removal of dangerous
5Though Vest Transportation and Gladders Barge Line discussliability in terms of negligent

owners and negligent non-owners, Congress has since amended the Wreck Act, replacing the faultbased standard with a strict liability standard. In re Barnacle Marine Mgmt. Inc., 233 F.3d 865, 868

n.6 (5th Cir. 2000).

7

obstructionsin navigable waters. Univ. of Tex. Med. Branch v. United States, 557 F.2d 438, 441 (5th

Cir. 1977) (“Congress sought to ensure that navigable waterways remained free of obstructions,

including sunken vessels.”). The purpose of amending the Wreck Act in 1986 was to increase the

ability of the Corps of Engineers to recover wreck-removal expenses. See S.REP. NO. 99-126, at 26

(1985) (noting that ordinarily recovery costs exceed salvage value). The District does not contest the

position that a towing vessel can violate the Wreck Act and, therefore, have responsibility for the

removal of a sunken tow owned by a non-negligent party. See Agri-Trans Corp. v. Gladders Barge

Line, Inc., 721 F.2d 1005, 1008 (5th Cir. 1983) (noting that “the cost of recovering a sunken vessel

can be imposed on a negligent non-owner”). See also St. Paul Fire & Marine Ins. Co. v. Vest

Transp. Co., 666 F.2d 932, 941 (5th Cir. 1982) (“[T]he negligent owner of the towing vessel . . .

would be personally liable to the government for the cost of removal of the sunken vessel as a hazard

to navigation unless[the owner] promptly removed the barge.”).5Instead, the District claims, and the

court below agreed, that the agreement between Griffin and the District was not a towage contract

because the written release from liability did not contain any statements related to movement of the

vessel or towage. Oral contracts, however, are valid in admiralty. See Kossick v. United Fruit Co.,

365 U.S. 731, 734 (1961). The district court erred by resolving this issue by reference to the written

agreement alone.

The district court also found that, even ifthe agreement between Griffin and the District were

a towing agreement, the District’s actions in attempting to move the boat did not confer operator
8

status because such actions were “almost completely unsuccessful.” We disagree. An entity that

enters a towing contract but subsequently fails to tow the vessel as far as intended does not escape

operator status because of its failure. This result better aligns the definition of operator with

Congress’sintent so asto not limit the potentialsources of cost recovery for the government and the

pool of persons to fulfill the duties imposed under the Wreck Act. The district court erred in finding

that, even if there was a towing agreement, because the District’s attempted removal of the shrimp

boat was unsuccessful, the District was not an operator under the Wreck Act.

IV. CONCLUSION

Fuesting’s generalmaritime negligence claim should not have been dismissed merely because

the District satisfied the criteria in Louisiana’s governmental immunity statute. Additionally, the

district court erred in concluding that the District was not an operator under the Wreck Act. We

REVERSE the district court’s decision and REMAND for proceedings not inconsistent with this

opinion.