Army Corps of Engineers Immune from Liability for Failure to Dredge
The Fifth Circuit Court of Appeals ruled in MS Tabea Schiffahrtsgesellschaft MBH v. Board of Commissioners of the Port of New Orleans, that the US Army Corps of Engineers were immune from liability for damages allegedly caused by their failure to properly dredge the Mississippi River.
This case arises out of damage sustained in June 2008, by the M/V MSC TURCHIA, when it grounded while approaching the Napoleon Avenue Wharf in the Port of New Orleans. The shipowner brought suit against the Board of Commissioners of New Orleans (Dock Board), who in turn, brought suit against the United States, alleging that the Army Corps of Engineers had a statutory duty to dredge and maintain the Mississippi River as a navigable waterway, and the ship's grounding was caused by the Corps failure to do so.
The Dock Board alleged that because they were granted a permit to dredge to a depth of forty-five (45) feet, the Government was required to maintain the dredging at that depth thereafter. The Government argued that the dredging operations of the Corps of Engineers are purely discretionary and fall within the discretionary function doctrine. The District Court found that the granting of a permit to the Dock Board did not eliminate the Army Corps of Engineers discretion in determining when and how it would conduct dredging operations in the Mississippi River and, for that reason dismissed the claims against the United States for lack of subject matter jurisdiction.
The Fifth Circuit affirmed the dismissal of the failure to dredge claim, holding that, despite the issuing of the permit, the Army Corps of Engineers maintained discretion to determine whether or not to maintain a non-federal harbor improvement project. The Fifth Circuit reasoned that the discretionary function exception places a limit on the general waiver of sovereign immunity, and therefore, the Army Corps of Engineers have complete discretion in determining which dredging projects to maintain, regardless of whether a permit has been issued for independent dredging.
Accordingly, the Fifth Circuit upheld the District Court's dismissal because the Dock Board's failure to dredge claim was barred as a matter of law by the discretionary function exception.
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