Opposition Brief — Consolidated Aluminum Corp. v. C. F. Bean Corp.

No. 87-1656

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

CONSOLIDATED ALUMINUM CORPORATION,

Petitioner

v.

C.F. BEAN CORPORATION, BEAN DREDGING

CORPORATION, AMERICAN EMPLOYERS

INSURANCE COMPANY, OCEAN MAF INE

INDEMNITY COMPANY, LTD., ST. PAUL. 'RE

AND MARINE INSURANCE COMPA: ~ ,

HIGHLAND INSURANCE COMPANY «© .d

ARKWRIGHT-BOSTON MANUFACTUF RS

MUTUAL INSURANCE COMPANY

spondents.

Brief in Opposition to

Petition for Certiorari

by Respondents C.F. Bean Corporation,

Bean Dredging Corporation, American Employers

Insurance Company, Ocean Marine Indemnity Company, Ltd.

Comelius G. Van Dalen

Allen F. Campbell

(Counsel of Record)

Deutsch, Kerrigan & Stiles

755 Magazine Street

New Orleans, Louisiana 70130

Telephone: (504) 581-5141

Counsel for Respondents,

C.F. Bean Corporation,

Bean Dredging Corporation,

American Employers Insurance

Company, Ocean Marine

Indemnity Company, Ltd.

:

Te

i.

RESTATEMENT OF THE ISSUE PRESENTED

The court of appeals and the district judge have both

held that Respondent (Bean) could not have anticipated that

its failure to follow safe dredging practices would result in

physical damage to the equipment and work in process at

Consolidated’s (Petitioner’s) aluminum plant. The harm

suffered by Consolidated, as found by the trier of facts in

a traditional tort risk-duty context, and affirmed by the

Fifth Circuit, was not of the general sort that one would

expect to follow from failing to dredge carefully near a gas

pipeline located six and one-half miles away from Consoli-

dated’s plant.

The only issue, therefore, is: Ba

Whether Bean’s conduct created a foreseeable

risk of harm to the plaintiff. Both lower

courts held it did not.

The classic rule of non-liability for consequential damage

arising from negligent interference with the unknown con-

tract of another was transcended here by introducing the

rather bizarre element of physical damage superimposed on

pure economic loss, thus pitching this case into the more

mundane arena of traditional tort law. See Consolidated

Aluminum Corp. v. C.F. Bean Corp., 772 F.2d 1217 (Sth Cir.

1985), Pet. App. C-16, 17.

a

ii.

DISCLOSURE OF PARTIES TO THE PROCEEDINGS

Rules 21(b) and 28.1

Pursuant to Rule 21.1(b), counsel for Respondents points

out that all the parties to the proceedings below are not

contained in the caption of the petition. Parties appearing

below included Texaco, Inc. and the United States of Ameri-

ca, by and through the Corps of Engineers, neither of which

are interested in Consolidated’s petition to this Court. All

other parties are correctly named in the caption of the

petition and hereto.

Pursuant to Rule 28.1, Respondent Bean Dredging Corpor-

ation discloses that its parent is C.F. Bean Corporation, also a

party hereto, and that Bean Services Corporation and Volker

Stevin U.S. Corp. are parent and affiliated corporations.

iil.

TABLE OF CONTENTS

Page

Restatement of the Issue Presented ................... i

Disclosure of Parties to the Proceedings ............... ii

ee ane Ae aS a eee iii

ee rk ek dy week ek Oe iv

Reasons Why Petition Should be Denied .............. 2

AS a ae re 2

I. There is no Conflict Between the Fifth

Circuit’s Decision in Consolidated and the

Decisions in any Other Circuit ................ 6

Il. There is no Analytical Confusion Regarding

errr eer ere Terres 10

Ill. Consolidated’s Invitation for This Court to

Address the Standards of Legal Cause in a

Maritime Tort Action is Inappropnate ......... 13

es Bre Se On ea aie eV ere ae 15

iv.

TABLE OF AUTHORITIES

PAGES

CASES

Branti v. Finkel, 445 U.S. 507, 511-12 n.6., 100 S.Ct.

Sy I a Ge ee kid a RS Re ot ee 14

Consolidated Aluminum Corp. v. C.F. Bean Corp.,

peed oe Seige. 0 A |) er ere rrr i

Consolidated Aluminum Corp. v. C.F. Bean Corp.,

639 F.Supp. 1173 (W.D. La. 1986), aff'd 833 F.2d

Pe EE ib kate kaya ene caseunes 2,3,4, 5,6

7,10,12, 13

Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct.

FIO, SEl Se Ge PRT EEPEOD kee bs didedvdiacs 6

Petition of Kinsman Transit Co., (Kinsman I) 338

F.2d 708 (2nd Cir. 1964), cert. denied 380 U.S.

i |, ee rn ra paeee rn eUM aee 7,8,9

Layne & Bowler Corp. v. Western Well Works, Inc.,

Se ee ee ee. o-oo a ba oo + ORs eee 13

N.C.A.A. v. Bd. of Regents of Univ. of Okl. , 468 U.S.

85, 97-98, n.15, 104 S.Ct. 2948 (1984) ............ 14

Palsgraf v. Long Island R. R., 162 N.E. 99,248 N.Y.

Ri Me PR Met i a, > | 11,12

Pastore v. Taiyo Gyogyo, K.K., 571 F.2d 777 (3rd

Se ea ed fa t8 ss oe waucah man ke we records 8,9

Vv.

TABLE OF AUTHORITIES (Continued)

. PAGES

CASES

PPG Industries, Inc. v. Bean Dredging Corp., 447

BE See eae, SO ko erie haces Cesta eeen 9

Republic of France v. United States, 290 F.2d 395,

ae Ce Pe ee ea ea eeehar ae ee

Rice v. Sioux City Memorial Park Cemetery, Inc. , 349

OS. TE, Pa, Fo eek. GES ReFe avis kee oui ees 14

Watz v. Zapata Offshore Co., 431 F.2d 100 (Sth Cir.

a Rg rg a er EAL wie rb a 10

OTHER AUTHORITIES

57 Am. Jur. 2nd Negligence §33 (1971) ............. 10

Green, Proximate Cause in Texas Negligent Law, 28

Tee. 6 TG re re og ve i a eee ee Lea 6

Green, The Duty Problem in Negligence Cases, 28

Col. L. Rev. 1014 (1928) and 29 Col. L. Rev. 225

CSRSe sch ocaws eo eee Lee eee ee ee 10

Harper, The Foreseeability Factor in Law of Torts,

7 DD. Ga Be ee ES +. hoo eee e ee 6

Harper, James and Gray, The Law of Torts, Scope of

Duty in Negligence Cases §18.2 at 655 (2nd Ed.

SOD so voix ik oe eh ee ee ee ee 6

vi.

TABLE OF AUTHORITIES (Continued)

PAGE

OTHER AUTHORITIES (Continued)

F. James and R. Perry, Legal Cause, 60 Yale LJ. 761,

POO CEUOED cc ccsacteceeescese eee . 6

Malone, Ruminations on Cause-in-Fact, collected in

his Essays on Torts, p. 172 (1985), also published

}). 3% 5 fi... Ree eee 6

Prosser and Keaton on Torts, Duty §53 (Sth Ed.

SON s Oacdeséecueanehnaalnn ene 6, 10

Restatement (Second) of Torts §281(b) and com-

ment 6 CESGE) ik vwacectdacudsbenueeelT 10,11, 12

Words and Phrases, Foreseeability

No. 87-1656

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

CONSOLIDATED ALUMINUM CORPORATION,

Petitioner

v.

C.F. BEAN CORPORATION, BEAN DREDGING

CORPORATION, AMERICAN EMPLOYERS

INSURANCE COMPANY, OCEAN MARINE

INDEMNITY COMPANY, LTD., ST. PAUL FIRE

AND MARINE INSURANCE COMPANY,

HIGHLAND INSURANCE COMPANY and

ARKWRIGHT-BOSTON MANUFACTURERS

MUTUAL INSURANCE COMPANY.

Respondents.

Brief in Opposition to

Petition for Certiorari

by Respondents C.F. Bean Corporation,

Bean Dredging Corporation, American Employers

Insurance Company, Ocean Marine Indemnity Company, Ltd.

Respondents (Bean) respectfully request that this Court

deny the petition by Consolidated Aluminum Corporation

(Consolidated) for wnt of certiorari seeking review of the Fifth

Circuit's opinion in this case

2.

Reasons Why the Petition Should be Denied

Statement of the Case

Consolidated’s version of the facts material to this case

neither conveys nor portrays a complete picture. Therefore,

to put the matter in its proper perspective, Bean deems it

necessary to amplify briefly the statement of the case pro-

vided by Consolidated.

The pipeline struck and ruptured by Bean’s dredge crossed

beneath the Calcasieu River (Lake Charles) Ship Channel.

That pipeline, referred to as the PPG (Pittsburgh Plate

Glass) feeder, served to deliver natural gas from Texaco’s

main Evangeline supply line directly to PPG’s plant in Lake

Charles.!

The pipeline itself was identified in Bean’s dredging

contract with the Corps of Engineers as one of no less than

1. Texaco’s gas distribution system is depicted on a schematic

diagram prepared by Texaco and identified as Exh. PX-10, copy of

which is attached as an appendix hereto. Texaco’s PPG feeder was

built in 1963. Exh. PX-43. The Evangeline Pipeline, which terminates

at the eastern (southern) bank of the Calcasieu River, was built in

1952. The Evangeline line connected to a number of Texaco’s pro-

ducing fields in south Louisiana. When Texaco eventually tied in the

Evangeline line, this greatly enhanced Texaco’s ability to provide gas

in Lake Charles, providing Texaco with the opportunity to expand

its market in the area. The subsequent marketing effort by Texaco

eventually led to the gas sales agreement with Consolidated. Consoli-

dated, 639 F.Supp. 1173, 1176 (W.D. La. 1986), aff'd 833 F.2d

65 (5th Cir. 1987), also at Petitioner’s Appendix, (Pet. App.) B-3

and B-4. See also Exh. PX-10 and PX-27.

3.

twenty pipelines which crossed beneath the Calcasieu River

and within the area where Bean was to dredge. It should

be noted that nothing in the Corp of Engineers’ documents

or drawings connect that Texaco pipeline to anything or

to anyone (except Texaco). 639 F.Supp. at 1177, Pet. App.

B-5-. Neither Bean nor its employees had any knowledge

of the contract between Texaco and Consolidated. Nor

did Bean or any of its employees have any knowledge of

Consolidated or its fragile aluminum processes. 639 F.Supp.

at 1182-83, Pet. App. B-20-21. Nothing about the pipeline

suggested in any way the prospect of physical damage to an

industrial plant.

The Consolidated plant did not lie anywhere near the

limits of Bean’s dredging work as established by the Corp

of Engineers. Consolidated’s plant was situated on an entirely

different body of water, the Lake Charles Industrial Canal,

and was not even adjacent to the river or channel in issue.

If fact, no portion of Consolidated’s property adjoined the

Calcasieu River channel. Exh. PX-48, 7r. V. 12 at 635.

Consolidated’s plant was located approximately six and one-

half miles from the location of the rupture in Texaco’s PPG

feeder line. 639 F Supp. at 1183, Pet. App. B-21.

Texaco and Consolidated had entered into a Gas Sales

and Purchase Agreement in 1968. Though calling for delivery

of a minimum volume and pressure of gas each day, the

contract also contains a force majeure provision excusing

either party from any liability for “breakage or accident

to. . . lines of pipe [and] temporary failure of gas supply”’.

Exh. PX-29, p. A-17.

The actual delivery of Texaco’s gas to Consolidated

came predominantly from the Evangeline pipeline, through

“Point C”, a gathering platform in the marsh south of Lake

Charles, and then by single pipeline directly to Consolidated’s

4.

plant. With no other arrangements than these, Consolidated’s

Lake Charles plant became the only aluminum plant ever

built with no back-up or secondary source of power whatso-

ever. In that regard Consolidated’s plant was unique in the

aluminum industry; no other aluminum reduction plant is

fed with power from only one source and direction. The

arrangement for one-source gas delivery proved to be a

hopelessly inadequate situation in which to operate an

aluminum pliant. 833 F.2d at 66, Pet. App. A-3; 639 F.Supp.

at 1179, Pet. App. B-12, 13.

Consolidated’s management, however, thought Texaco’s

gas system generally reliable, they never did bother to eval-

uate the risks to the plant in the event of an interruption

at any point in Texaco’s pipeline system. 7r. V. 14 at 1024-

25, 1032-33, 1043. It was never even considered that a

rupture in any of the pipelines crossing the Calcasieu River

would result in a shutdown of the Lake Charles plant (7r.

V. 14 at 858), much less cause any of the “physical” damages

which subsequently arose.2

To effect the repairs to the line, Texaco was required to

close a block valve at Jennings, La., more than thirty miles

distant. This terminated the gas flow in the Evangeline

pipeline. Texaco had no means at the time by which to

isolate the PPG feeder. The entire distribution system to

Lake Charles, and not just PPG, was thereby affected. 639

2. If Consolidated’s management did not see the risk in shutting

down its own plant as a result of activities in the Lake Charlies Ship

Channel, it is difficult to see how Bean should have foreseen, from its

position as a dredging contractor on a different body of water (more

than six miles away), what Consolidated failed to see right in its own

back yard and in a situation immediately familiar to Consolidated.

Yet, incredibly, Consolidated appeals to this Court to find that parties

like Bean should be held liable as a matter of law.

-

F.Supp. at 1180, Pet. App. B-14, 15. Consolidated was fed

with a minimal amount of gas from Texaco’s Big Lake or

Hackberry Field, approximately 3.5 million cubic feet per

day, an amount insufficient to run Consolidated’s plant.

Exh. PX-27. Operations at Consolidated promptly ceased,

and the physical damage ensued.

Consolidated at trial introduced expert testimony on the

nature of industry in Lake Charles. Its expert, Mr. Norman

Terry, having conducted a study of how each plant obtained

its raw material and energy needs, certainly possessed unique

knowledge on the interdependency of industry in the area.

But Consolidated’s own expert, in spite of his vast knowledge

on the subject, had no idea where any of the products in

any of the pipelines went or whom they served; 7r. V. 12

at 628-31. He did know that ail industrial plants in Lake

Charles had a back-up or secondary source of power available

to them, 7r. V. 12 at 634, and the most he could say about

the effect of an interruption in any one pipeline was that

anything was possible and nothing would “‘surprise”’ him.

Tr. V. 12 at 638-40, 641.

After considering all the evidence on the matter, the

district judge held that there was nothing to even suggest

that Bean should reasonably have anticipated that a rupture

of the Texaco pipeline would cause physical harm to the

petitioner’s remotely located aluminum plant. 833 F.2d at

68, Pet. App. A-7; 639 F.Supp. at 1182-83, Pet. App. B-20,

21. On appeal, the Fifth Circuit agreed and affirmed, finding

no error in any of the factual (clearly not erroneous) or legal

3. This study was made in conjunction with the U.S. Department

of Energy’s Strategic Petroleum Reserve Project. Tr. V. 12 at 617.

Consolidated made no effort to show what a dredging contractor knew

or should have known about the remote effects of a rupture in a

pipeline.

6.

conclusions in the trial court’s opinion. 833 F.2d at 68, Pet.

App. A-8.

I. There is no conflict between the Fifth Circuit's

Decision in Consolidated and the Decisions in

any Other Circuit.

Contrary to Consolidated’s assertions, the opinion in this

case does not conflict with any other admiralty decisions.

Consolidated argues, erroneously, that the cornerstore of

the Fifth Circuit’s decision is the inability of a “reasonably

thoughtful person” to have anticipated the “precise sequence

of events” flowing from the negligent act. Consolidated’s

Petition, p. 5. But nowhere in the Fifth Circuit’s opinion

is such a requirement stated; the only requirement is that the

harm be of “a general sort” that a reasonably thoughtful

person might anticipate. 833 F.2d at 68. Pet. App. A-7.

After noting the discussions of foreseeability by eminent

commentators’, as well as the basic requirements of fore-

seeability found in a former Fifth Circuit case which relied

on a decision of this Court, the Fifth Circuit went ahead

4. 833 F.2d at 67, Pet. App. A-4-7. See, e.g. Green, Proximate Cause

in Texas Negligent Law, 28 Tex. L. Rev. 775 (1950); Prosser and

Keaton on Torts, Duty §53 (5th Ed. 1984); Harper, James and Gray,

The Law of Torts, Scope of Duty in Negligence Cases §18.2 at 655

(2nd Ed. 1986); Malone, Ruminations on Cause-in-Fact, collected in

his Essays on Torts, p. 172 (1985), 9 Stan. L. Rev. 60 (1956); F. James

and R. Perry, Legal Cause, 60 Yale L. J. 761, 786 (1951); Harper, The

Foreseeability Factor in Law of Torts, 7 N.D. Law. 468, 482 (1932).

5. Republic of France v. United States, 290 F.2d 395, 401 (5th Cir.

1961), quoting Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct.

956, 971, 97 L.Ed. 1427 (1953); as well as listing several accepted

definitions by numerous courts as found in Words and Phrases, Fore-

seeability. 833 F.2d at 67 n. 1, Pet. App. A-5.

(f

and distilled the following generalized statement regarding

the foreseeability of harm:

“We perceive a harm to be the 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 interven-

tion.” 833 F.2d at 68, Pet. App. A-7.

The Fifth Circuit’s formulation, quoted above, captures

the classic tort definitions of foreseeability. It hardly differs

from the principles as espoused by legal scholars and eminent

jurists over the past hundred years.

Applying that definition to the facts in this case, the

lower courts found that Bean could not possibly have antici-

pated that its failure to follow safe dredging practices would

likely result in physical damage to an aluminum plant located

more than six miles away and on a different body of water.

That was simply not the type of general harm expected to

follow from respondent’s dredging operations. In fact, the

harm in this case was simply inconceivable; even Consolida-

ted’s own management never thought it was possible.

These considerations display, contrary to the assertions of

Consolidated, that the Fifth Circuit addressed the issue from

the standpoint of whether any harm to Consolidated was

foreseeable; and agreed with the trial judge that it was not.

By way of contrast, the cases relied upon by Consolidated

in its effort to engineer a conflict between the circuits, i.e.,

Petition of Kinsman Transit Co. (Kinsman I), 338 F.2d 708

(2nd Cir. 1964), cert. denied 380 U.S. 944 (1965), and

8.

Pastore v. Taiyo Gyogyo, K.K., 571 F.2d 777 (3rd Cir.

1978), are simply not on point. Both those cases dealt with

exact manner and extent of harm; they do not address the

question of whether any risk of harm was foreseeable or not.

They are, therefore, distinguishable. i

In Kinsman I, for example, the plaintiffs were riparian

property owners who suffered injury when a vessel broke

free from her moorings and drifted downstream. It was never

disputed that the shipowner owed a duty to the downstream

property owners to moor his vessel properly and safely.

The general type of harm meaning the risk of damage to

downstream property owners, was always present and never

questioned. Kinsman, 338 ~ 2d at 722-23, 724.

In Pastore, the Third Circuit employed a slightly different

analysis. But the Third Circuit, like the Second Circuit in

Kinsman, first decided that some general harm was reason-

ably to be anticipated. The plaintiff in Pastore was a fireman

who was injured when he fell from a ladder in one of the

vessel’s cargo holds. The ladder had been positioned on what

appeared to be part of the deck but was actually a tarpaulin

covering some frozen cargo. The crew members and the

stevedores were present when the ladder was so placed, but

no one warned the firemen when they subsequently arrived

to fight a fire in the hold. The defendants were well aware

that the cargo hold was deceptive in appearance, possibly

inviting tragedy to the unwary visitor. In that fashion, the

stevedores’ careless cigarette smoking did more than set the

stage for the fireman’s presence. “The possibility (that) the

fireman would fall because of unfamiliarity with conditions

cannot be said to be so unusual as to sustain the district

court’s ruling that there was no proximate causation as a

matter of law.” Pastore, supra, 571 F.2d at 782. The risk of

harm to someone falling from a precarious but deceptively

placed ladder is obvious. The risk of harm to a remotely

situated aluminum plant is a different matter altogether.

9.

In both Kinsman and Pastore, the harm eventually suffered

was precisely the sort of harm which might have been antici-

pated by a reasonably thoughtful person, even if the exact

method and extent of harm might not have been so easily

ascertained.

However, the facts of the instant case compel a different

result. How could the operator of a dredge working in a

navigable channel near PPG’s plant possibly have foreseen

that its unintentional severing of a gas pipeline lying beneath

the bottom of the nver would cause physical damage to

an aluminum plant more than six miles away. It stretches

imagination to the extreme to argue that respondents could

have foreseen that an interruption of a gas pipeline in Louisi-

ana would cause any harm, much less physical harm, to

Consolidated’s equipment and processes. Every judge who

considered this question decided that the risk of harm was

simply too remote or too indirect to justify the imposition

of liability on Bean.®

6. PPG’s plant also went without its supply of natural gas from

Texaco when the pipeline was severed. Suit was filed by PPG against

Bean in state court. Exceptions were granted in favor of Bean, which

decision was affirmed by the Supreme Court of Louisiana. PPG Indus-

tries, Inc. v. Bean Dredging Corp., 447 So.2d 1058 (La. 1984). In that

case, the seven justices on the Louisiana Supreme Court agreed that

the particular risk at issue here, the risk of shutting down the plaintiff’s

factory, was not encompassed by Bean’s duty of care not to damage

pipelines negligently. PPG Industries, 447 So.2d at 1059-60. The

Louisiana Court’s analysis is of interest. The Louisiana justices ex-

amined the case in light of traditional tort principles, applying a duty-

risk analysis. The court considered PPG’s losses as “indirect”, and

observed there was clearly an ease of association between the rule of

law imposing a duty not to damage property belonging to another and

the risk of injury sustained by Texaco, but that duty did not extend

to the “risk that a third-party who has contracted with the owner

of the injured property will thereby suffer economic loss.’’ PPG Indus-

tries, 447 So.2d at 1061. Consolidated’s harm was even more peculiar

10.

The decision of the trial judge is correct. The petition for

certiorari should not entertained.

II. There is no Analytical Confusion Regarding

Duty and Foreseeability

Consolidated relies on isolated and selected readings

of the Restatement (Second) of Torts to suggest that the

Fifth Circuit and the district judge were somehow confused

with the concepts of foreseeability and causation. There is

simply no support for this accusation. Nor is there a conflict

between the Restatement of Torts and the lower courts’

treatment of the case.

The Restatement also requires that the risk of some

general harm to the plaintiff be established first. In other

words, this is the establishment of a duty, the determination

of which is guided by the general priciples of tort law.

It is well established that a tortfeasor “tis accountable only

to those to whom a duty is owed”. 833 F.2d at 67. Watz v.

Zapata Offshore Co., 431 F.2d 100 (Sth Cir. 1970); 57

Am. Jur. 2nd Negligence §33 (1971). The determination

of that duty involves a number of considerations, including,

most notably, the foreseeability of the harm suffered by the

complaining party. 833 F.2d at 67. Prosser and Keaton on

Torts, Duty §53 (Sth Ed. 1984); Green, The Duty Problem

in Negligence Cases, 28 Col. L. Rev. 1014 (1928). In this

fashion, the Restatement approach is in perfect harmony

with the Fifth Circuit’s analysis. .

The Restatement (Second) of Torts §281 (b) notes that

an actor is liable to another if his conduct “‘is negligent with

6. (Continued)

and was not expected by anyone. The consequence of physical harm

to Consolidated was, at best, inconceivable.

11.

respect to the other’. The comments to this clause, partially

quoted above, explain further:

“If the actor’s conduct creates such a recog-

nizable risk of harm only to a particular class

of persons, the fact that it in fact causes harm

to a person of a different class, to whom the

actor could not reasonably have anticipated

injury, does not make the actor liable to the

person so injured.” Restatement, supra;

comment c.

Considering the principle stated above, it follows that a

breach of Bean’s duty not to damage pipelines negligently

would create a recognizable risk of harm to the pipeline

owner, but Consolidated is unquestionably of a “different

class”. Consolidated is not a pipeline owner. Consolidated

owned no property anywhere near the PPG pipeline. Consol-

idated does not even belong to the class of riparian property

owners, like PPG, located along the banks of the channel

near the Texaco PPG line.”

In these circumstances, as both the Restatement and the

courts below recognize, the fact that Bean’s conduct caused

harm to a person of a “different class”, i.e., Consolidated,

to whom Bean could not have reasonably have anticipated

injury , does not make Bean liable.

The illustrations given by the Restatement in support of

this principle are derived from Palsgraf v. Long Island R. R.,

162 N.E. 99, 248 N.Y. 339, 59 A.L.R. 1253 (N.Y. 1928).

Here, as in Palsgraf, we have the same problem of geograph-

ical remoteness. We have an _ unforeseeable plaintiff.

7. Consolidated is in a class of its own because of its reliance on

only one pipeline, with no back-up or secondary source of power

whatsoever, but that is another matter.

12.

We have unforeseeable consequences. But in this case, unlike

Palsgraf, we have Consolidated’s damage occurring only

because Texaco failed to deliver the gas as required by the

contract. It was only after the “contracted-for” gas failed

to arrive that the events at Consolidated’s plant began to

unfold. There was nothing to suggest in any way that a

rupture of Texaco’s pipeline would interrupt Consolidated’s

gas delivery and cause physical harm to a plant, located more

than six miles away, on a different body of water.

The iliustrations in the Restatement make it clear that

the question of whether or not Bean is negligent toward

Consolidated turns on whether Bean could have reasonably

anticipated the risk of harm to someone like Consolidated,

which, of course, it could not have. The evidence clearly

demonstrated that Consolidated’s peculiar harm was not

expected by anyone.

Thus, missing from this case is any factual reason for

embarking on Consolidated’s rather novel “hindsight”

approach to legal cause. The lower courts’ determinations

of whether the consequence of Bean’s negligence was foresee-

able by a reasonably thoughtful person is in line with the

Restatement and contemporary legal thought. Indeed, the

Fifth Circuit went to great lengths to consider this case in

light of prominent legal teachings. See 833 F.2d 67-68 and

authonties cited therein.

The issue of Bean’s reaponsibility was properly decided

by the district judge, and those findings and conclusions

were correctly affirmed by the Fifth Circuit. Consolidated’s

arguments to the contrary are without ment.

The petition should be denied as it fails to raise any issues

pertinent to the jurisdiction of this Court.

6 tote

13.

III. Consolidated’s Invitation for This Court to

Address the Standards of Legal Cause in a

Maritime Tort Action is Inappropniate.

Consolidated’s effort to have this court enunciate standards

to be applied in a legal cause determination is tantamount

to reinventing the wheel. The questions of duty and foresee-

ability, including causation, have been developed and applied

by state and federal courts for hundreds of years. A wealth

of knowledge and precedent exist by which the lower courts ©

sitting in admiralty can be guided. No purpose would be

served by this Court granting certiorari on the point.

Consolidated obviousiy raises this issue only insofar as it is

necessary to its own claims and arguments. In Layne & Bowl-

er v. Western Well Works, Inc., 261 U.S. 387, 393 (1920),

this Court said, “‘it is very important that we be consistent in

not granting the writ of certiorari except in cases involving

principles the settlement of which is important to the public

be]

as distinguished from that of the parties. . .”’.

The issues which Consolidated raise are inherently factual

in nature. The outcome of any tort case is fact~sensitive.

Consolidated’s invitation to set aside many of the lower

court’s findings and conclusions was rejected by the Fifth

Circuit. That court found instead “no error in any factual

finding or legal conclusion inherent in the trial court’s ruling

that the damages suffered by Consolidated were not foresee-

able and, as such, not within the reach of the duty imposed

on Bean to perform its dredging operations in a non-negligent

manner.” 833 F.2d App. at 68, Pet. App. A-8.

In view of the stated practice of according “great weight”

to findings of fact which have been made by the district

court and approved by a court of appeals, Consolidated’s

invitation for writs should be declined and its petition

14.

denied. See, e.g., N.C.A.A. v. Bd. of Regents of Univ. of Ok,

468 US. 85, 97-98, n.15, 104 S.Ct. 2948 (1984); Branti v.

Finkel, 445 U.S. 507, 511-12, n.6., 100 S.Ct. 1287 (1980).

The district judge and the Fifth Circuit, in analyzing this

case as they did, spoke as a single voice. Their treatment of

the issues was proper and in line with convincing precedent.

No showing is made that the result would be any different

in another circuit. There is no necessity for concluding,

as Consolidated suggests, that the Fifth Circuit decided

important questions of admiralty law which should be settled

by this Court. cf. Rice v. Sioux City Memorial Park Cemetery

Inc. , 349 U.S. 70, 74, 75 S.Ct. 614 (1955).

15.

Conclusion

Consolidated has had every opportunity to persuade

the trier of fact that its peculiar and remote harm was the

foreseeable result of Bean's dredging. Consolidated has

fought the good fight, but has lost.

In light of the foregoing reasons, Consolidated’s Petition

for Writ of Certiorari should be denied, and this protracted

litigation finally brought to an end.

Respectfully submitted,

7

Comelius G. Van Deen

Allen F. Campbell

(Counsel of Record)

Deutsch, Kerrigan & Stiles

755 Magazine Street

New Orleans, Louisiana 70130

Telephone: (504) 581-5141 7

Counsel for Respondents,

C.F. Bean Corporation,

Bean Dredging Corporation,

American (mployers Insurance

Company, Ocean Marine Indemnity

Company, Ltd.

APPENDIX