NEW ORLEANS (CN) – Government-contracted dredging companies are not liable for the catastrophic flooding of the New Orleans area after Hurricane Katrina, even if they failed to follow the U.S. Army Corps of Engineers’ specifications for dredging, the 5th Circuit ruled.
The decision upholds a federal judge’s determination that the alleged damages are “beyond the pale of general harm which reasonably might have been anticipated by negligent dredgers.”
Tens of thousands of individual and corporate property owners sued various private dredging companies in Federal Court, claiming that dredging of the Mississippi River Gulf Outlet (MRGO) amplified the storm surge and contributed to the levee breach and massive flooding of Orleans and St. Bernard Parishes.
Dredging operations severely damage Louisiana wetlands, “which provide a natural barrier against tidal surge from storms and hurricanes,” according to the ruling.
But the courts concluded that the dredging operations were not significant enough to have singlehandedly contributed to the catastrophe.
The dredging companies “had no knowledge of an immediate and pending natural disaster that would affect how they conducted their dredging operations,” Judge Carolyn King wrote for the three-judge panel.
“Furthermore, it cannot be said 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,” King concluded.
Landowners had argued that the flooding stemmed from the erosion of protective wetlands caused by the negligent dredging of the MRGO, a 76-mile navigational channel built by the Army Corps of Engineers between 1958 and 1965. The channel connects the Gulf of Mexico with the Industrial Canal in New Orleans by bisecting the marshy wetlands of St. Bernard Parish.
The Corps of Engineers dredged the MRGO exclusively from 1965 until 1993, after which it began awarding contracts to private dredgers. Between 1999 and 2004, the Corps awarded 154 contracts to private dredging companies to dredge the length of the MRGO.
In two earlier class actions, landowners sued the private companies contracted by the government to operate 22 dredging vessels along the MRGO between 1993 and 2004.
Several dredgers filed petitions seeking to avoid or limit their liability for Katrina-related damages.
A federal judge granted the dredgers’ motion to dismiss, finding that the devastation caused by Katrina was not a foreseeable event. The judge also granted them government-contractor immunity, since they were never accused of failing to comply with governmental specifications.
Following dismissal of the class actions, property owners sued the dredgers in the limitation action, adding allegations of negligence to defeat any assertions of government-contractor immunity.
Specifically, the plaintiffs said the dredgers “failed to perform their dredging work with due care” and “performed their dredging work in the MRGO negligently.”
But the 5th Circuit said the landowners failed to show how flood damages were a “foreseeable consequence” of the allegedly negligent dredging operations.
“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,” King concluded, affirming dismissal of the case.