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, Pl aint iff - Appellant,

versus LAFAYETTE PARISH BAYOU VERMILION DISTRICT; LAFAYETTE INSURANCE COMPANY, Defendants - Appellees.

___________________________________________________ Appeal from the United States District Court fo r the Western District of Louisiana

___________________________________________________ Before SMITH, GARZA, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: In this suit invo lving the allisio n of a pleasure boat wit h a parti ally submerged and abandoned shrimp boat, the pleasure boat owner, Michael Fuesting, appeals the district court’s grant of summary judgment in favor of defendant Lafayette Pari sh Bayou Vermilio n District (the “Dist rict”). Fuesting argues that the district court erred in finding th at Loui siana’s governmental statutory immunit y law precluded his general marit ime law claim and t hat the district court erred in finding th at the District

was not an “o perator” under the Wreck Act, thereby dismissing Fuesting’s negligence claim premised on the Wreck Act. For the following reasons, we reverse.1 Though 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 This lawsuit stems from the July 2001 allisio n between Michael Fuesting’s small pleasure boat and a sunken shrimp boat near a bank of the Vermilio n River in Lafayet te Pari sh, 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 allo wed to deteriorate over a number of years, and it eventually sank to the riverbed. Som

e of the boat remained visible above the waterl ine. Local cit izens eventually com plained to the Lafayette Pari sh Bayou Vermilio n District about the eyesore created by the parti ally submerged shrimp boat. In January 2001, the District received permission from Griffin to attem pt to refloat the boat and remove it from the river. The attem pt failed, and the boat remained parti ally submerged. The parties dispute the relative success of the District’s attempted removal: The District argues that its effo rts only mo ved the boat a few feet and rotated it 180 degrees, thus leaving the boat out of the navigational channel. Fuesting argues th at the boat had mo ved further before again sinking to the riverbed. At no time before or aft er the District’s attem pted removal was the submerged shrimp boat marked with buoys or lights. The allisio n occurred around sunset on July 3, 2001. Fuesting claims th at the water level was higher th an usual, such th at almo st all of the boat was submerged. As a result of the allisio n, Fuesting was thrown from his boat, knocked unconscious, and injured. Fuesting sued the District, the District’s insurer, Lafayette Insurance Co. (“Lafayette”), alo ng wit h other defendants, in December 2002. The other defendants were dismissed from the case. 1 Fuesting’s allegations were th at the Di strict was a responsible party under the Wreck Act and was3

negligent under g eneral marit ime law. The District, joined by Lafayette, moved for summary judgment. Fuesting opposed the mo tion and filed it s own mo tion fo r parti al summary judgment as to the claim premised on the Wreck Act. The district court granted summary judgment to the District

as to the Wreck Act vio lat io n because the court determined that the evidence provided by Fuesting could not support a finding th at, fo r Wreck Act purposes, the District was an operator of the shrimp boat when it attempted to remove it from the river. The district court fo und, however, th at the District might still be negligent und er general marit ime law pursuant to Indian Tow ing Co. v. Un ited 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 th an addres s the meri ts of this negligence claim against the District, the court s ua sponte requested briefing on the impact of LA . REV . S TAT . 9:2798.1, which grants statutory immunit y 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 marit ime 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 indemnit y claims agains t the Hatches as moot. Fuesting filed a timely notice of appeal. II. STANDARD OF REVIEW The district court’s grant of summary judgment is reviewed de novo. Terrebonne Parish Sch. Bd. v. Mobil Oil Corp. , 310 F.3d 870, 877 (5th Cir. 2002). Summary judgment m ay be granted if there is no genuine issue of mat erial fact and the mo ving party is entitled to judgment as a mat ter of law. Id. (citing FED . R. C IV . P. 56(c)). III. DISCUSSION2 Section 9:2798.1(B) provides: Liabilit y shall not be impo sed on public entities or their of ficers or employees based upon the exercise or performance or the failure to exercise or perform their pol icymaking or discretionary acts when such acts are wit hin the course and scope of their lawful powers and duties. 4 A. Louisiana immunity statute As to Fuesting’s general marit ime law negligence claim, the court granted summary judgment in favor of the District because, in it s view, the District’s attem pt to mo ve the shrimp bo at was a protected act under LA . REV . S TAT . § 9:2798.1(B). 2 We must address an impo rtant th reshold question not addressed by the parties or the district court: whether a state statute limit ing the liabilit y of a municipal entity like the District prevents a

cause of action arising under the admir alt y laws of the United States. Over a century ago, the Supreme Court held th at the New York City Fire Department could not employ a New York state law exempting municipal entities from tort liabilit y to defeat a suit against it in admiralty. Workman

v. City of New York , 179 U.S. 552, 557–63 (1900). The Workman Court reasoned th at admiralty law is not displaced by lo cal law; if it were, the unifo rm it y of marit ime law would be undermined. Id. at 558–59. The Court then responded to the city ’s contention that state law protected it: The marit ime law affo rds no justification fo r this contention, and no example is fo und if such law, where one who is subject to suit and amenable to process is allowed to escape liabilit y fo r the com missio n of a maritime tort, upon the theory relied upon[, state law]. We, of course, concede th at where marit ime torts have been com mit ted by the vessels of a sovereign, and com plaint has been made in a court of admiralty, th at court has declined to exercise jurisdiction, but this was solely because of the immunit y of sovereignty from suit in it s own courts. . . . [This rule], however, proceed[s] upon the hypo th esis 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 o f admiralty to redress a wrong com mit ted by one over whom such courts have adequate jurisdiction, but alone on their inabilit y to give redress in a case where jurisdiction over the person or property cannot be exerted. . . .3 For this reason, we do not address the parties’ contentions on appeal concerning whether the

District’s acts fall within the protection of LA . REV . S TAT . § 9:2798.1. 5 [I]t fo llo ws that as the municipal corporation of the city of New York, unlike a sovereign, was subject to th e j uri sdiction of the court, the claimed exemption from liabilit y asserted in the case at bar

. . . w as with out f oundation in the maritime law, and therefore affo rded no reason for denying redress in a court of admiralty fo r the wrong which the courts below both found to have been committed. Id

. at 566, 570. The Workman Court’s holding recognizes th at municipalit ies do not enjo y Eleventh Amendment sovereign immunit y. Recently, th at proposition has been invoked mo re explicit ly. See Jinks v. Richland County , 538 U.S. 456, 466 (2003) (“[M]unicipalities, unlike States, do not enjo y
a constitut io nally protected immunit y fr om suit.”). S ee also N. Ins. Co. of New York v. Chatham County , — U.S. —, 126 S. Ct. 1689, 1694-95 (2006) (endorsing the “general prin ciple” found in Workman “t hat sovereign immunit y does not bar a suit against a city” and rejecting a county’s sovereign immunit y defense in an admiralty suit). However, a municipalit y can be immune from suit if it was “acting as an arm of the State, as delineated by [the Supreme] Court’s precedents.” Chatham County , 126 S. Ct. at 1694 (citing A lden 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 it s status as a public entity and because it meets the criteria of LA . REV . S TAT . § 9:2798.1, is not immune from suit in admiralty. The district court must consider whether the Workman principle applies. 3 We invit e 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 th e owner, lessee, or operator of such sunken craft to immediat ely mark it wit h a buoy or beacon during the day and, unless otherw ise granted a waiver by t he Com mandant of the Coast Guard, a light at night, and to4 The agreement contains no reference to the removal of the shrimp boat. However, the

District does not argue th at the hold-harmless agreement pertains to anyt hing other th an the removal of Griffin’s shrimp bo at f

rom the Vermilion River.

6 maint ain 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 immediat e removal of the same, and prosecute such removal diligently . . . . The provisions of the Wreck Act thus apply only to owners, lessees, and operators of sunken crafts. Fuesting’s position is th at 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 District 4 and (2) the District’s failed attem pt to remove the shrimp boat. In response to Fuesting’s oper ator argum

ent, the District both below and on appeal points out that the agreement between Griffin and t he District was a mere release of liabilit y and argues that the agreement does not make the District an operator under the Wreck Act. The court belo w agreed wit h the District and held th at the District was at no time an operator of the shrimp boat. In particular, the district court fo und th at: [T]he agreement b etween the District and Griffin, and the actions taken by the District, do not render the District an “o perator” of the sunken shrimp boat as th at term was int ended under th e Wreck Act. Even if t he Court determ ined that the docum ent signed by Griffin was sufficient to create a towing contract, which it does not, the fact remains th at the boat was never towed anywhere by the District, whose attem pt to m ove the boat was almost completely unsuccessful. (footnote om

it ted). Because the district court’s unsupported application of the term “o perator” is too narrow, we disagree wit h it s finding th at the Dist r ict was not an operator under the Wreck Act. Indeed, the district court’s narrow int erpretation 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 dangerous5 Though Vest Transportation and Gladders Barge Line discuss liabilit y in terms of negligent

owners and negligent non-owners, Congress has since amended the Wreck Act, replacing the fault

based standard wit h a strict liabilit y standard. In re Barnacle Marine Mgmt. Inc. , 233 F.3d 865, 868 n.6 (5th Cir. 2000). 7 obstructions in 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 purp ose of amending the Wreck Act in 1986 was to increase the abilit y of the Corps of Engineers to recover wreck-removal expenses. See S. REP . N O . 99-126, at 26 (1985) (noting th at ordinarily recovery costs exceed salvage value). The District does not contest the position th at a towing vessel can vio lat e the Wre ck Act and, theref ore, 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 th at “t he cost of recovering a sunken vessel

can be impo sed on a neglige nt non-owner”). S ee also St. Paul Fire & Marine Ins. Co. v. Vest Transp. Co. , 666 F.2d 932, 941 (5th Cir. 1982) (“[T]he negligent own er of the towing vessel . . . would be personally liable to the government fo r the cost of removal of the sunken vessel as a hazard to navigation unless [the owner] prom ptl y removed the barge.”). 5 Instead, the District claims, and the court belo w agreed, that the agreement between Griffin and the District was not a towage contract because the written release from liabilit y did not contain any statem ents related to mo vement 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 fo und th at, even if the agreement between Griffin and the District were
a towing agreement, the District’s actions in attem ptin g to move the boat did not confer operator8

status because such actions were “almo st com pletely unsuccessful.” We disagree. An entity th at enters a towing contract but subsequently fails to tow the vessel as far as intended does not escape operator s tatus b ecause of its failure. This result better aligns the definition of operator with Congress’s int ent so as to not limit the potenti al sources of cost recovery fo r the government and the pool of persons to fulfill the duties impo sed under the Wreck Act. The district court erred in finding th at, 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 general marit ime negligence claim should not have been dismissed merely because the District sati sfied the criteria in Loui siana’s governmental immunit y statute. Additionally, the dis tri ct court erred in concluding that the District was not an operator under the Wreck Act. We REVERSE the district court’s decis io n and REMAND for proceedings not inconsistent with this opinio n.