Petition for Writ of Certiorari — Lucas v. Lloyd's Leasing

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NO. eens

In the ns

Supreme Court of the United States

OCTOBER TERM, 1989

WILLIS LUCAS, ET AL

Petitioners

VS.

LLOYD’S LEASING, ET AL

Respondents

VS.

CONOCO, INC.

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITIONERS’ PETITION FOR

WRIT OF CERTIORARI

McLEOD, ALEXANDER, POWEL

& APFFEL, P.C.

ERVIN A. APFFEL, JR.

OTTO D. HEWITT, III.

‘ KENNETH J. BOWER

MICHAEL L. NEELY

802 Rosenberg; P. O. Box 629

Galveston Texas 77553

409/763-2481; 713/488-7150

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 \

(1)

(2)

(3)

(4)

QUESTIONS PRESENTED FOR REVIEW

Does the owner/operator of an oil tanker afloat 70

miles from Galveston Island owe the island’s

beachfront residents and businesses a duty of care

to prevent a massive oil spill?

When the M/V Alvenus spilled 2.6 million gallons of

oil into the Gulf of Mexico, 11 miles offshore and 70

miies from Galveston Island, was the risk of harm

to beachfront property so unforeseeable as to place

it beyond the scope of Respondents’ legal duty of

care to prevent massive oil spills?

Did the scope of Respondents’ duty to prevent

massive oil spills extend to harm caused by people

“‘tracking”’ the oil from Galvestson beaches to adja-

cent homes and businesses?

Was it proper for the Fifth Circuit to reject the

district court’s basis for summary judgment, then

affirm on grounds not advanced or argued before

the district court?

LIST OF PARTIES

Pursuant to Rule 21.1(b), counsel for Petitioners cer-

tifies that the following is a complete list of all parties:

Petitioners:

Petitioners (Plaintiffs below) are 135 individuals and

businesses directly harmed by the tracking of oil off from

Galveston beaches. They are listed in Appendix E.

Respondents:

1. Lloyds Leasing, Ltd.

2. Cammell Laird Shipbuilding, Ltd.

3. Alvenus Shipping Company, Ltd.

4. Conoco, Inc.

5. Lake Charles Pilots, Inc.

6. Malcolm Gillis, Pilot

7. Mitchell Energy & Development Corp.

8. Mitchell Realty, Inc.

9. State of Texas.

0. Ms. Leonore M. Gutierrez Doody

11. Bob White, et al

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .....:................. i

LIST OF PARTIES .............. Cait cdeus PO ii

TABLE OF CONTENTS ...~..................... iii

Reape GO EIS Le eee iv

Ske ecw tec e wees 1

JURISDICTION a a vn os oe 4s och o.e a 2

STATUTES AND’RULES INVOLVED ............. 2

STATEMENT OF THE CASE ..................... 2

REASONS FOR GRANTING WRIT................ 4

ARGUMENT AND AUTHORITIES................ 5

CONCLUSION AND PRAYER ................. 17-19

CERTIFICATE OF SERVICE ................. 20-21

APPENDIX A (5th Circuit Opinion) .............. A-1

APPENDIX B (Order Overruling Motion for

Rehearing)........ ea ees « Es gaan ss ck A-10

APPENDIX C (Trial Court Memorandum and

VS SEEPS STS USGA (a's a A-i2

APPENDIX D (Motion for Rehearing)............ A-21

APPENDIX E (List of Petitioners) .............. A-35

LIST OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, 477 US 242, 255

is a 5 i'd a.se! ose Ak WO REE REID AS ORD AF 5,7

Arenas v. U.S., 322 U.S 419, 434 (1944) ............ 5,7

Arizona Copper Co. v. Gillespie, 230 US 46, 57

a ile ek enw ae nes 9

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

833 F.2d 65, 67 (5th Cir. 1987) ........ §,8,13,14,15,17

Commercial Transport Corp. v. Martin Oil Service,

374 F.2d 813, 817 (7th Cir. 1970) ................ 10

Heywood v. pub. Housing Administration, 238 F.2d

GOO, GOS Wek Cer. BOGE. ee. 7

Horton & Horton, Inc. v. T/S J. E. DYER, 428,F.2d

SI, Ba ee Ses BE fa Fee KC PERAK, 9

Kernedy v. Silas Mason, 334 US 249, 256-7 (1948) .. .5,7

Nunley v. M/V Dauntless, 727 F.2d 455 (5wth Cir.

RE ChB ae. See. Sad wed biases SeaeNs 11

State ex rel. Guste v. M/V Testbank, 752 F.2d

I ike CERNE a Nica dw 5,14

U.S. v. Fryd Constr. Corp., 423 F.2d 980, 984

ee ats og i Ok ee BU IEE web 7

Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir.

NY Fag es ee a re eins hats 5,9

Watz v. Zapata Offshore Co., 431 F.2d 100 (5th

ee oe Le as Gee wean Cake rode sane’ 12

STATUTES

i os ca eee eey cha aO cas Dae Cese 2

ee onc. ka lug Ul a wo ace aw 3

es on. oy yk sk ae cae alen sw 3

RULES

Federal Rule of Civil Procedure 56................. 2,5

re Pen eee eg oe ccc ewecekns een 4

TEXTS AND TREATISES

Gilmore & Black, The Law of Admiralty, p. 404

Reg) a Se 10

eS ee ee 11

CN I og ons cu cic e cu wevesoscn 12

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

? OCTOBER TERM, 1989

WILLIS LUCAS, ET AL

Petitioners

VS.

LLOYD’S LEASING, ET AL

Respondents

VS.

CONOCO, INC.

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITIONERS’ PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE UNITED STATES SUPREME

COURT:

Come now, Petitioners and seek Writ of Certicrari to

the Fifth Circuit’s April 4, 1989 judgment and May 19,

1989 order refusing rehearing and pray that same issue in

these regards.

OPINIONS BELOW

The Fifth Circuit Opinion, reported at F.2d.

(5th Cir. 1989), is attached as Appendix A. The Court’s

order denying the Motion for Rehearing is attached as Ap-

pendix B. The district court’s Memorandum and Order,

reported at 697 F.Supp. 289 (S.D. Tex. 1987), is attached as

Appendix C.

JURISDICTION

Jurisdiction is based on 28 U.S.C. §1254(1). The Fifth

Circuit entered judgment on April 4, 1989 and denied Peti-

tioners’ motion for rehearing on May 19, 1989.

FEDERAL STATUTES AND RULES INVOLVED

Federal Rule of Civil Procedure 56.

STATEMENT OF THE CASE

-A-

On July 30, 1984, M/T Alvenus ran aground just off

the coast, 11 miles from Cameron, Louisiana. The groun-

ding cracked the Alvenus’ hull, producing a massive oil

spill of 2-3 million gallons of heavy crude oil and tar. The

U.S. Coast Guard expressed concern for damage to

Galveston as early as the first day after the spill. U.S.

Coast Guard landfall predicitions varied in the early hours

after the oil spill, but on August 2nd, the Coast Guard

issued an alert to Galveston and Respondents at bar set up

a command post in Galveston and began hiring clean up

crews. On August 4, 1984, the Alvenus’ oil washed ashore

in Galveston and continued to do so for over a month, caus-

ing enormous damage at the height of Galveston’s summer

tourist season.

-B-

Respondents at bar filed this limitation of liability

action per 46 U.S.C. 183. thereafter, over 375 claimants

(among them Petitioners at bar) filed claims for damages

caused by the massive oil spill. Respondents at bar moved

for summary judgment and Petitioners responded.

Respondents at bar did not raise foreseeability — the basis

of the trial court’s ultimate order and the 5th Circuit's deci-

sion — in their summary judgment motion. Their

foreseeability argument came in a Reply to Petitioners’

Response to Respondents’ Motion for Summary

Judgment.

The trial court entered partial summary judgment as

to certain claims made by the “tracking damage”

claimants (Petitioners), who moved to reconsider. On

January 22, 1988, the trial court modified its earlier order,

dismissing the ‘‘tracking damage” claimants themselves,

despite substantial summary judgment proof that ‘‘track-

ing damage” from the massive oil spill was “highly pro-

bable’’. The gist of the trial court summary judgment was

that “‘tracking’’ oil from the beaches into Petitioners’

homes and businesses was not foreseeable. In its January

22 order, the trial court invited Petitioners to file another

motion to reconsider, which was done. By order of Apri!

14th, the trial court denied same. Harboring significant

doubts, however, the trial court also ordered Petitioners to

file an interlocutory appeal per 28 U.S.C. 1292(b).

On April 25, 1988, they did so. The 5th Circuit, by

order of June 7, 1988, denied the interlocutory appeal! but

held that the matter was, in any event, “‘appealable as of

right’’. Appeal was thereafter docketed and timely proceed-

ed. On April 4, 1989, the 5th Circuit reversed the trial

court’s holding but affirmed summary judgment per

1 ““(T)he (trial) court did not properly certify the order appealed from as

required by §1292(b)”’.

curiam, Judge Higginbotham concurring and dissenting in

part. Suggestion for Rehearing En Banc and Motion for

Rehearing timely followed, being denied on May 19, 1989.

Application for Writ to this Honorable Court timely

followed.

GROUNDS FOR GRANTING WRIT

Pursuant to Rule 17, there are + sauna and important

grounds for granting Writ:

(1) The 5th Circuit has decided questions of federal

law which have not been, but should be, settled by this

Honorable Court.

(a) Whether the owner/operator of an oil tanker

afloat 70 miles from coastal communities owes

the residents and businesses of those com-

munities a duty of care to prevent massive oil

spills?

(b) Whether the winds and tides that bring

massive oil spills ashore constitute intervening

causes that break the chain of foreseeability and

preclude liability for resulting harm?

fully developed provides a reason to conclude that

the owner/operator of an oil tanker owes no duty

to coastal communities in that region?

(ad) Whether people tracking oil from beaches to

adjacent homes and businesses constitutes an in-

tervening cause that breaks tshe chain of

foreseeability and precludes liability for resulting

harm?

(e) Whether the ultimate destination of a

massive offshore oil spill must be predictable

with certainty before there can be liability for

resulting damages?

(f) Whether a 1-in-5 probability that a massive oil

spill will drift to a heavily populated area renders

that likelihood so unforeseeable as to preclude

liability for resulting damages?

(2) The 5th Circuit decision, deciding a complex case

of far-flung import on summary judgment, conflicts with

guidance from Kennedy v. Silas Mason, 334 US 249, 256-7

(1948); Anderson v. Liberty Lobby, 477 US 242, 255 (1986)

and Arenas v. U.S., 322 US 419, 434 (1944).

(3) The 5th Circuit decision conflicts with the doc-

trine of foreseeability applied in Union Oil Co. v. Oppen,

501 F.2d 558 (9th Cir. 1974), as well as Consolidated

Aluminum Corp. v. C.F. Bean, 833 F.2d 65 (5th Cir. 1987)

and State ex rel. Guste v. M/V Testbank, 752 F.2d 1019

(5th Cir. 1986).

(4) the 5th Circuit has sanctioned a gross departure

from Fed.R.Civ.P. 56.

ARGUMENT AND AUTHORITIES

Generally

The 5th Circuit called for “far-reaching exoneration

of the shipping industry from responsibility’ for massive

oil spills. (Slip. Op., 2714 — Higginbotham, J., concurring

and dissenting). Given the exoneration of an entire in-

dustry, the panel majority impacts far beyond this case

and this oil spill. The absolution of the shipping industry

will discourage industry efforts towards greater safety

measures, oil spill containment technology and

mechanisms to predict oil spill landfall. What rational ship-

ping executive would invest tirae and money in such mat-

ters, where to do so might remove an unbeatable defense to

any liability at all?

Fifth Circuit’s ‘‘Far-Reaching Exoneration of

Shipping Industry From Responsibility”

for Massive Oil Spills — Summary Judgment

Contrary to Sound Public Policy

Judge Higginbotham accurately assessed the 5th

Circuit’s holding as calling for ‘‘far-reaching exoneration of

the shipping industry from responsibility” for massive oil

spills. (Slip Op., 2714 — Higginbotham, J., concurring and

dissenting in part).

Massive oil spills present complex issues of profound

public import. These incidents visit heavy damage on a

legion of individuals and impact business, quality of life,

local/regional economy and the environment. Additionally,

safety standards and rules, and accountability are im-

plicated. This case (and that presented by the recent

Alaska spill?) stand as examples.

This Honorable Court has repeatedly cautioned

against summary disposition of cases involving complex

issues of profound public import:

(Summary Judgment procedures, however

salutory where issues are clear-cut and simple,

present a treacherous record for deciding issues of

2 The Alaska oil spill was characterized by the Court setting

the Captain’s bond as the worst disaster since Hiroshima.

far-flung import. . . . We consider it . . . good

judicial administration to withhold decision of

the ultimate questions . . . until this or another

record shall present a more solid basis of findings

based on litigation or on a comprehensive state-

ment of agreed facts.

While we might be able, on the present record, to

reach a conclusion that would decide the case, it

_might well be found later to be lacking in the

thoroughness that should precede judgment of

this importance and which it is the purpose of the

judicial process to provide. (emph. added).

Kennedy v. Silas Mason Co., 334 U.S. 249, 256-7 (1948);

Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (citing

Silas with approval); Arenas v. U.S., 322 U.S. 419, 434

(1944) (“‘duty of court . . . can be discharged in a case of this

complexity only by trial. . . . ”, reversing summary

judgment)5

The wisdom of this cautionary principle is seen at

bar. On a record developed only by affidavit and legal argu-

ment, 135 Petitioners heavily damaged in a massive oil

spill are precluded from relief — despite 5th Circuit agree-

ment that the “tracking damage” they suffered was a

foreseeable and probable result of the presence of oil on

Galveston beaches. With the 5th Circuit opinion as prece-

dent, an oil tanker owner/operator may be absolved from

liability simply with an affidavit swearing an inability to -

predict exactly where the oil spill ‘bullet’ would hit.

Issues of profound public import — such as massive oil

spills — should not be decided by affidavit in a summary

3 This is also the 5th Circuit rule. U.S. v. Fryd Constr. Corp., 423 F.2d

980, 984 (5th Cir. 1970); Heywood v. Pub. Housing Administration, 238

F.2d 689, 698 (5th Cir. 1956).

judgment procedure.

Petitioners have no quarrel with the principle of

“foreseeable risk’’ employed by the 5th Circuit to deter-

mine the scope of Respondent’s duty of reasonable care.

That principle limits a tortfeasor’s responsibility to:

harm of a general sort to persons of a general

class which might have been anticipated by a

reasonably thoughtful person, as a probable

result of the act or omission, considering the in-

terplay of natural forces and likely human

intervention.

Slip Op., 2713, quoting from Consolidated Aluminum Corp.

v. C.F. Bean Corp., 833 F.2d 65, 68 (5th Cir. 1987). Surely,

Respondents might have anticipated the likelihood that

spilling two to three million gallons of oil so near the coast

would damage coastal businesses and other beachfront pro-

perty. One day after the spill, the Coast Guard raised con-

cerns about damage to Galveston and its staff met with

Galveston officials to take protective measures.

However, the 5th Circuit exonerated Respondents,

concluding that there was no reason to anticipate that the

oil would reach a “‘heavily populated area”. This conclusion

was derived from the fact that the spill occurred 70 miles

from Galveston and that only 60 miles of 340 miles of

coastline from Calcasieu, Louisiana to the Mexican border

was ‘“‘developed”’. According to Justice Higginbotham, this

reasoning:

calls for far-reaching exoneration of the shipping

industry from responsibility to the gulf coast,

making curious indeed our effort in the Testbank

line of cases to adopt a pragmatic limitation on

the doctrine of foreseeability. Slip. Op., 2714.

“Stripped to essentials’’, the 5th Circuit holds that

vessel owners ‘‘owe no duty shoreward’’ — at least not to

residents of the Texas coast. Id. So long as the oil tanker

is far enough from the Texas coast that an oil spill might

make landfall in an undeveloped area, the vessel owner

owes no duty of care to Texans. Stated differently, unless

and until Texas chooses to fully develop its coastline,

owners of tankers in the Gulf owe no duty to coastal

residents. This narrow concept of legal duty conflicts with

the views of this Court, as well as otHer federal circuits, in-

cluding the Fifth Circuit itself. /

In Union Oil Co. v. Oppen, 501 F.2d 558, 569 (9th Cir.

1974), the 9th Circuit held that damage caused to coastal

fishermen — when ‘‘vast quantities of raw crude oil were

released and subsequently carried by wind, wave and tidal

currents over vast stretches of . . . coastal waters .. .’’ was

foreseeable. The crucial consideration for the 9th Circuit

was not whether it could be predicted exactly where the oil

would drift. Rather, foreseeability resided in the fact that

defendants could reasonably foresee that negligently con-

ducted drilling operations ‘’might diminish aquatic life and

. . . the business of commercial fishermen”. As the court

said, ““The dangers of pollution were and are known even by

school children.” Jd., at 569. Similarly, Respondents at bar

could reasonably foresee that spilling 2-3 million gallons of

oil 11 miles from the Gulf Coast might adversely impact on

a populated coastal community. The U.S. Coast Guard cer-

tainly did! See also, Arizona Copper Co. v. Gillespie, 230

US 46, 57 L.Ed. 1384 (1912) (riparian ownér may recover

property damage caused by pollution 25 miles upstream).

The 5th Circuit has generally adopted a more liberal

stand regarding foreseeability in the context of admiralty

cases. For example, in Horton & Horton, Inc. v. T/S J. E.

_ DYER, 428 F.2d 1131, 1135 (5th Cir. 1970), the court made

the following comment about foreseeability and interven-

ing causation:

In determining causation in maritime matters,

the applicability of such doctrines as . . . interrup-

tion of negligence by a subsequent intervening

negligence is questionable. ‘‘[T]he maritime court

has been less ready than the shore courts to find

that a subsequent wrongful act by one party

breaks the chain of causation connecting the acci- -

dent with the prior negligence of the other party.”

Gilmore & Black, The Law of Admiralty, p. 404 (1957). See

also, Commercial Transport Corp. v. Martin Oil Service,

374 F.2d 813, 817 (7th Cir. 1970).

IV.

THIRD PARTY HUMAN INTERVENTION: “TRACKING

DAMAGE” WAS “VERY COMMON”, “VERY LIKELY” AND

“HIGHLY PROBABLE” — NOT “HIGHLY EXTRAORDINARY”

AS A MATTER OF LAW

The trial court held that ‘‘tracking damage’’ was not

recoverable because third party human intervention (those

who tracked oil off the beaches) broke the causal chain of

foreseeability (Ex. C — Order of 1/22/88, at 4). The 5th Cir-

cuit, however, disagreed with the trial court and held that

“tracking damage” was a “common sense conclusion’’s,

agreeing with Petitioners that ‘‘tracking damage” was pro-

bable and foreseeable.®

4 Slip, Op., at 2713.

5]d., at 2713-14. Petitioners presented expert affidavits below that

establish ‘‘tracting damage’’ from a massive oil spill as “common”,

“very likely” and “highly probable’. (Tr. 1165-76 — U.S. Coast Guard

Nunley v. M/V Dauntless, 727 F.2d 455 (5th Cir.

1984) adopted Rest. of Torts 2d §§442, 447. There, the 5th

Circuit held that the negligence of an intervening third par-

ty does not break the causal chain if:

(a) the actor at the time of his negligent conduct

should have realized that a third party person

ight so act (i.e., track oil off the beach into Ap-

ts’ homes and businesses), or

(b} a reasonable man knowing the situation ex-

isting when the act of a third party was done (i.e.,

when the oil was tracked off the beaches into Ap-

pellants’ homes and businesses) would not regard

it as highly extraordinary that the third party

would so act, or

beach into Appellants’ homes and businesses) as

a normal consequence of a situation created by

the actor’s conduct in a matter in which it is done

is not extraordinarily negligent.

Id, at 464-5.

Given the summary judgment proof that “tracking

damage” from massive oil spills was “common” and

“highly probable’ (Tr. 1165-76), it cannot be said — as a

matter of law — that the “tracking damage”’ at bar was so

“highly extraordinary”’ as to break the causal chain. It

would have been extraordinary had “‘tracking damage’”’ not

occurred! The inconsistency of the 5th Circuit with Nunley

5 continued. Veteran of 20 years experience in oil spill investigation and

clean-up, president of oil spill clean-up company involved in over 100 oil

spills, college professor training oil spill clean-up personnel for 11 years,

etc.).

guidelines introduces uncertainty into an already com-

plicated field of law.

Watz v. Zapata Offshore Co., 431 F.2d 100 (5th Cir.

1970) adopted Rest. of Torts 2d §435(i), holding that

if the actor’s conduct is a substantial factor in

bringing about the harm to another, the fact that

the actor neither foresaw nor should have fore-

seen the extent of harm or the manner in which it

occurred does not prevent him from being liable.

(emph. added).

Id, at 116. the conduct at bar was Respondents’ negligence

producing a massive oil spill on the Gulf Coast — obviously

a “substantial factor” in bringing about Petitioners’ harm.

Under Watz, Respondents cannot be absolved, even if

(arguendo) they did not foresee the “‘common”’ and “‘highly

probable” tracking of oil off the beaches into Petitioners’

homes and businesses.

THE 5TH CIRCUIT’S NEW TEST

The 5th Circuit misconstrued the proper

“foreseeability” test. In a nutshell, it held that Peti-

tioners’ harm was not foreseeable as a matter of law —

because Respondents could not predict that individuals

and businesses would probably be harmed. Under this new

6 The 5th Circuit agreed that “Appellee [Respondents] might reasonably

anticipate that the oil might wash ashore somewhere. . . . ”’ (Slip Op.,

2713) but concluded that since the precise coastal point to be hit by the

oil spill ‘‘bullet”” was not foreseeable, neither wes the harm. (Jd). Thus,

the 5th Circuit reasoned that — since Respondent did not precisely

know that the oil spill would wash ashore in Galveston — Petitioners’

harm was not foreseeable and Respondents were absolved of liability.

standard, a defendant shooting a gun into a crowd would

be absolved from liability because he did not know precise-

ly who the bullet would hit!’ This is not the correct

““foreseeability”’ test.

The 5th Circuit cited the correct test,8 but misap-

plied and rewrote it. As announced in Consolidated

Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th

Cir. 1987):

harm ... (is) . . . foreseeable . . . if (1) harm of a

general sort (2) to persons of a general class (3)

might have been anticipated by a reasonably

thoughtful person, (4) as a probable result of the

act or omission, (5) considering the interplay of

natural forces and likely human intervention.

(numbering and emph. added).

The 5th Circuit based its decision on the ‘“‘persons of

a general class” element,? reasoning that if oil spill landfal!

at Galveston was not predicted with certainty, then — as

a matter of law — harm to the Galveston Petitioners was

not foreseeable. This ‘‘certainty”’ requirement is not the

Consolidated standard; it is a new, incorrect standard,

deleting Consolidates’s ‘general class’’ element and

substituting an onerous “predictable with certainty”

element.

Consolidated requires that harm of some type (‘‘a

general sort”’) ‘‘might have been anticipated’”’ to be visited

upon “‘persons of a general class’’. That “general class’’ is

7 Slip. Op., 2714 (Higginbotham, J., concurring and dissenting).

8 Slip. Op., 2713, citing Consolidated Aluminum Corp. v. C.F. Bean

Corp., 833 F.2d 65, 67 (5th Cir. 1987).

9 Slip. Op., 2713.

Gulf Coast residents and businesses.!° Consolidated does

not require the victims to be identified with exactitude —

prior to the oil spill landfall — but only that the ‘‘general

class” of victims potentially to be harmed be identifiable.

cf: State of La. ex rel. Guste v. M/V Testbank, 752 F.2d

1019 (5th Cir. 1985) (en banc) (noting that a general class

of “commercial fishermen were foreseeable, Plaintiffs

whose interests . . . (Defendant) had a duty to pro-

tect. «:..° 2

Under the 5th Circuit’s new standard, ‘‘foreseeabili-

ty’’ now requires that oil spill victims be identified prior to

landfall. Under the Consolidated ‘‘foreseeability’’ stan-

dard, however, the ‘‘general class’”’ element is met by simp-

ly demonstrating ‘’anticipation”’ of landfall along the Gulf

Coast, the “‘general class’’being persons and businesses in

that “general” area. Indeed, the ‘‘data’”’ relied on by the 5th

Circuit reflects a 1-in-5 probability for the oil spill ‘‘bullet’’

to hit populated Gulf areas like Galveston, establishing a

1-in-5 probability of harm to Petitioners.!! More exactitude

than even a 1-in-5 probability of harm is now required! This

is not Consolidated’s ‘‘general class’ element; it is

something new and onerous — and an exoneration of the

shipping industry from responsibility for massive oil

spills.!2 cf: Testbank, supra at 1032-3 (Gee, J., concurring).

10Consolidated dealt with persons and businesses suffering harm up to

6 miles inland; Petitioners at bar suffered harm within 300 yards inland.

11 Sip. Op. at 2713 (reflecting 340 miles of coastline, 60 miles being

populated like Galveston). indeed, landfall at Galveston was by the

third day after the spill — 2 days before it washed ashore. Coast Guard

Report (4/23/85), pp. 6-7.

12 Slip. Op., 2713 (Higginbotham, J.r, concurring and dissenting).

The risk at bar is damage due to tracking oil off the

beaches inte homes and businesses. This risk (as all panel

members agreed — Slip Op.,2713-14) was foreseeable and

probable. Indeed, Petitioners tendered expert testimony

that “tracking damage” was a ‘’common”’, “very likely’”’

and “‘highly probable” result of a massive oil spill. (Tr.

1165-76). The 5th Circuit however, extended Consolidated

to exonerate the shipping industry in almost all oil spills

(Slip. Op., 2714). Geasaieedhandiied nd ect entre Giid coor

insurmountable) layer atop the “‘foreseeability’’ test — to

avoid summary judgment. One must now establish as a

matter of law that the oil spill’s precise landfall was predic-

table. Foreseeability does not require a crystal ball.

ONE-IN-FIVE PROBABILITY — NOT ENOUTH |

FORESEEABILITY AS A MATTER OF LAW?

The 5th Circuit, contrary to Consolidated’s ‘‘general

class’’ element, now requires oil spill landfall to be

predicted with certainty before harm is ‘“‘foreseeable’’. The

import of the 5th Circuit decision is that a 1-in-5

probability! of harm is insufficient to raise a fact issue to

bar summary judgment in this case of profound public im-

port. A 1-in-5 probability of harm more than meets Con-

solidated’s ‘‘general class” of victims elements. A 1-in-5

probability of harm does nut establish — as a matter of law

— that harm was not “FORESEEABLE”.

13 Slip. Op., 2713 (340 miles of coastline, 60 miles being populated,

yields an approximate 1-in-5 probability of oil spill landfall.

Vil

THE ULTIMATE IRONY: TRIAL COURT: OIL HITTING

GALVESTON IS FORESEEABLE BUT “TRACKING

DAMAGE” IS NOT; 5TH CIRCUIT — “TRACKING

DAMAGE” IS FORESEEABLE BUT OIL HITTING

GALVESTON IS NOT

This case presents the ultimate irony. The trial court

held Petitioners’ ‘tracking damage’ was_ not

foreseeable,!4 although it was foreseeable for the oil spill

“‘bullet”’ to hit Galveston. The trial court allowed certain

classes of Galveston Claimants to recover for direct

physicai harm and for damages due to oil-laden windblown

mist. The 5th Circuit, contrary to the trial court, agrees

that ‘tracking damage” was foreseeable!® but — going

beyond the trial court decision on a matter no one appealed

— heJd that oil on Galveston beaches from the massive oil

spill was not foreseeable!!® Judge Higginbotham noted the

distinction between the decision appealed from and the

basis of the 5th Circuit’s ruling (Slip Op., 2713-4 — i.e., trial

court found “tracking damage”’ not foreseeable (which all

panel members disagree with) but majority found oil spill

landfall at Galveston not foreseeable). The ultimate irony is

14 App. C — (Order of 1/22/88 at 4):

“as a matter of law, .. . the damages . . . resulting from the

tracking of oil were not foreseeable.*** (T)he damages were

indeed possible but in no fashion probable. The element of

third party intervention that allowed the oil to be carried

from the beaches to claimants’ foreseeability’’. (emph.

added).

15 Slip. Op.,2713. Judge Higginbotham (concurring and dissenting) also

agrees that Petitioners’ “tracking damage’ was foreseeable (Siip.

Op., 2714).

16 Slip Op., 2713.

that the 5th Circuit opinion turns on a ruling below from

which no one appealed! Petitioners obviously did not

challenge any ruling that it was foreseeable for the oil spill

“bullet” to hit Galveston; Respondents filed no cross-

appeal and no cross-points.

CONCLUSION

The 5th Circuit, discarding Testbank and Con-

solidated, presents ‘far-reaching exoneration of the shipp-

ing industry from responsibility” for massive oil spills.

(Slip Op., at 2714 — Higginbotham, J., concurring and

dissenting). Thus, the import of its opinion reaches far

beyond this case and this oil spill. So long as tanker

owners/operators can claim inability to predict oil spill

landfall with certainty, oil spill harm is not ‘foreseeable’

as a matter of law, absolving them of liability. In policy

terms, such a state of law will hardly encourage industry ef-

forts toward greater safety measures, oil spill containment

technology and techniques of predicting oil spiil landfall.

Indeed, a rational industry executive would be discouraged

from investing time and money in such critical areas,

because to do so might remove an unbeatable defense to

liability.

The 5th Circuit presents a new ‘‘foreseeability’’ stan-

dard, abandoning Testbank’s “pragmatic limitation on .. .

foreseeability’”’!’ anc Consolidated’s “general class’’ of vic-

tims element. Contrary to these authorities, the new stan-

dard requires oil spill landfall to be predicted with certainty

before oil spill harm may be “foreseeable”. This onerous

16 Sip Op. 2713.

17 Slip. Op., 2714 (Higginbotham, J., concurring and dissenting). Judge

Higginbotham authored Testbank.

standard would absolve the industry from almost all oii

spills, as it would absolve one from liability for shooting in-

to a.crowd where one could not predict who the bullet

would hit. Slip Op., at 2714).

the 5th Circuit recites data reflecting a 1-in-5 pro-

bability that the oil spill ‘‘bullet’”” would harm populated

Gulf areas like Galveston. Even a 1-in-5 probability of

harm is not enough” foreseeability”’ of harm — as a matter

of law — under the new standard! Besides a divergence

from the law, a 1-in-5 probability of harm, at the least,

presents a fact question as to the foreseeability of harm,

barring summary judgment.

WHEREFORE PREMISES CONSIDERED, Peti-

tioners pray that the Petition be granted, the Fifth Circuit

Opinion regarding these complaints be reversed and

remanded with instructions, costs be assessed against

Respondents and for such other relief as may be just.

Respectfully submitted,

BY:

ERVIN A. APFFEL, JR.

TBA: 01278000

BY:

OTTO D. HEWITT, III

TBA: -09559500

BY:

KENNETH J. BOWER

TBA: -02727900

BY:

MICHAEL L. NEELY

TBA: -14861800

ATTORNEYS FOR

PETITIONERS

OF COUNSEL:

McLEOD, ALEXANDER, POWEL & APFFEL, P.C.

802 Rosenberg, P. O. Box 629

Galveston, Texas 77553 .

409/763-2481; 713/488-7150

CERTIFICATE OF SERVICE

I hereby certify that three copies of this Petition for

Writ have been served on opposing counsel on this the 17th

day of August, 1989, as follows:

Mr. James Patrick Cooney

Mr. John Elsley

Ms. Lisa Wesley

Royston, Rayzor, Vickery & Williams |

2200 Texas Commerce Tower

Houston, Texas 77002

Mr. Henry S. Morgan

Mr. Knox D. Nunnaly

Vinson & Elkins

2600 First City Tower

Houston, Texas 77002-6760

Ms. Constance M. Walker

McLean Bldg., Room 2038

600 N. Dairy Ashford

Houston, Texas 77079

Mr. R. Scott Blaze

Ms. Mee Lon Lam

U.S. Dept. of Justice

Civil Division-Torts Branch

Aviation & Admiralty Section

P. O. Box 14271, Ben Franklin Station

Washington, DC 20044

Mr. Lester Lautenschlaeger

Lautenschlaeger & Oberhelman

424 Gravier Street, Suite 300

New Orleans, LA 70130

Mr. Charles R. Houssiere, III

Robert K. Schaffer

Houssiere & Durant

1990 Post Oak Boulevaard, Suite 810

Houston, Texas 77056

Mr. Ralph K. Harrison

Mitchell Energy

& Development Corp.

P. O. Box 400

The Woodlands, Texas 77380

Ms. Susan Theisen

Energy & Environmental -

Protection Division

P. O. Box 12548

Austin, Texas 78711-2548

Mr. Wendell Radford

Benckenstein, Oxford,

Radford & Johnson

P. O. Box 150

Beaumont, Texas 77704

Mr. Henry Oncken

U.S. Attorney

515 Rusk Avenue, 12th Floor

Houston, Texas 77002

Otto D. Hewitt, III

A-l

APPENDIX A

In the Complaint and Petition of LLOYD'S LEASING

LIMITED. As Owner, and Cammell Laird Shipbuilding,

Ltd., et al.,

Petitioners-Appellees

CONOCO, Claimant-Third Party

Defendant-Appellee

Vv.

Bob WHITE et al, Claimants-Third Party

Plaintiffs-Appellants.

Vv.

U.S. ARMY CORPS OF ENGINEERS,

Lake Charles Pilots, Inc. and Simrad

Subsea, Inc. of Oslo Norway, Third Party

Defendants-Appellees

In the Complaint of Petition of

LLOYD‘S LEASING LTD., etc., et al.

Petitioners-Appelles

Willis LUCAS, et al.,

Claimants-Appellants.

Nos. 88-2350, 88-2515.

United States Court of Appeals,

Fifth Circuit.

April 4, 1989.

Owners of property approximately 70 miles from site

of ship’s grounding filed claims in shipowner’s limitation of

liability action to recover for damages caused when oil spill-

ed from ship washed ashore and was tracked onto their pro-

perty by tourists and beachgoers. The United States

District Court for the Southern District of Texas. Hugh

A-2

Gibson, J., entered summary judgment against property

owners, and they appealed. The Court of Appeals held that

harm suffered by property owners was not foreseeable. -

Affirmed.

Patrick E. Higginbotham, Circuit Judge, concurred

in part, dissented in part, and filed opinion.

1. SHIPPING 20%15/8)

Issue of whether harm suffered by property owners

as result of ship’s grounding and resulting oil spill was

foreseeable was properly addressed by trial court in limita-

tion of liability proceeding because determinination of tort-

feasor’s duty and its parameters, including foreseeability,

is function of court rather than of jury.

2. SHIPPING 81(1)

Harm suffered by property owners when oil spilled

from ship that ran aground was washed ashore apporx-

imately 70 miles from site of grounding and tracked onto

property by tourists and beachgoers was not foreseeable;

ship owner therefore owed no duty to property owners and

property owners’ claim were properly dismissed in

shipowner’s limitation of liability action.

Appeals from the United States District Court for the

Southern District of Texas.

Before GEE, HIGGINBOTHAM, and DUHE, Cir-

cuit Judges.

PER CURIAM:

In July 1989 the M/T Avenues grounded in the

A-3

Calcasieu River Bar Channel about eleven nautical miles

south/southeast of Cameron, Louisiana. As a result of the

grounding one of the ship’s tanks cracked, spilling 65,500

barrels of crude oil into the waters of theGulf of Mexico.

Given the particular combination of tides and winds that

existed at the time of the spill, the oil washed ashore on

Galveston Island, approximately 70 miles west of the site

of the grounding.

Following the accident the peteitioners appellees

filed an admirality limitation of liability action. Over 375

claimants filed claims against the petitioner and third par-

ty defendants. The trial court divided the claimants into

four groups based on the type of damages sustained. One

of these groups consisted of claimants who suffered

damages from oil tracked onto their premises by tourists

and beachgoers. The appellants are the members of this

group of claimants. In January 1988 the trial court granted

the petitioners/appellees’ motion for summary judgment as

to this group of claimants. The basis for the court’s deci-

sion was that these claimants were barred from recovery

because the darcage to them was, as a matter of law, not

foreseeable. The appellants contend that the trial court er-

red in granting summary judgment. Because we agree with

the district court’s conclusion that the harm suffered by

the appellants was not foreseeable we AFFIRM the judg-

ment of the district court.

The [Supreme] court has stated that Fed.R.Civ.P.

56(c) mandates summary judgment in any case

where a party fails to establish the existence of an

element essential to this case and on which he

bears the burden of proof. A complete failure of

abe on an essential eiement renders all other

acts immaterial because there is no longer a gen-

uine issue of material fact.

A-4

Washington v. Armstrong Werld Industries, Inc. 839 F.2d

1121 (5th Cir.1988) (citation omitted).

To establish a cause of action based on negligence

the plaintiff must establish the existence of four elements.

These elements are: ‘‘(1) the defendant was under a duty to

the plainttiff to use due care, (2) the defendant was guilty

of a breach of that duty, (3) the plaintiff has suffered

damages, and (4) the breach of the duty proximately caused

these damages.”’ Morris, Morris on Torts. 44 (2nd Edition)

(emphasis in original). In this case the district court

granted the appellees’ motion for summary judgment bas-

ed on its determination that the appellants had failed to

establish the existence of one of these elements, i.e., that

the defendant had a duty to the plaintiff. This determina-

tion was in turn, based on the court’s conclusion that the

harm suffered by the plaintiff was not foreseeable.

[1,2] The appellants advance two arguments for

reversal: First, the foreseeability is a question of fact and

should not be decided as a matter of law; Second, that sum-

mary judgment was inappropriate because the affidavits of

their experts raised a material fact issue.

In Consolidated Aluminum Corporation v. C.F. Bean

Corp., 833 F.2d 65, 67 (5th Cir.1987) we stated that

“{djetermination of the tortfeasor’s duty, and its

parameters, is a function of the court. That determination

involves a number of factors, including most notably the

foreseeability of the harm suffered by the complaining par-

ty.”’ (citations omitted) The district court therefore proper-

ly addressed the issue of whether the harm suffered by the

plaintiff was foreseeable. We must now determine whether

it correctly decided that issue.

In Consolidated Aluminum Corp. supra, we held that

A-5

[djuty . . . is measured by the scope of the risk that

negligent conduct foreseeably entails . . . and marks the

limits placed on a defendant’s duty . . .’’ Id. at 65. (citation

omitted)

The court went on to state that harm is ‘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 pro-

bable result of the act or omission, considering the in-

terplay of natural forces and iikely human intervention.”

Id. at 68.

Applying this definition, we conclude that the

district court's determination that the harm suffered by

the plaintiffs was not foreseeable and that the appellees

therefore owed no duty to the appellants is correct. The

original oil spill occurred seventy (70) miles from Galveston

in the Gulf of Mexico. The coastline between Calcasieu,

Louisiana, the site of the spill, and Port Isabel, on the Mex-

ico border, extends for approximately 340 miles. Approx-

imately 60 miles of this coastline is developed. To produce

the possibility of tracking damages such as these the oil

had to wash ashore on a developed shore, where there were

peopie to track it and places to track it into. The ap-

pellants’ experts testified that tracking damages are a pro-

bable consequence of oil spills that wash ashore in in-

habited areas, a commonsense conclusion that gains little

force when voiced by an expert. Their testimony did not,

however, address the probability that this oil spill would

wash ashore in such an area. Therefore their testimony

does not preclude a grant of summary judgment. While the

appellee might reasonably anticipate that the oil would pro-

bably wash ashore somewhere, it had no reason to have an-

ticipated that the oil would probably wash ashore in a

heavily polulated area and then be tracked into businesses

A-6

and homes. ‘‘[T]o be found liable a defendant must have

‘knowledge of a danger, not merely possible by probable

...’ Id. at 68. (citation omitted).

In light of these facts we conclude that the ap-

pellants have failed to establish a requisite element of a

negligence action. i.e., that the ‘harm to the appellants was

foreseeable and that the appellees therefore owed a duty to

the appellant. Consequently the district court properly

granted the appellees’ motion for summary judgment.

The judgment of the district court is

AFFIRMED

PATRICK E. HIGGINBOTHAM.

Circuit Judge, concurring in part and dissenting in part:

The M/V Alvenus ran aground in the Calcasieu Chan-

nel Pass off the Louisiana Coast in the Gulf of Mexico.

When its hull split it spilied between two and tree million

gallons of heavy crude oil and tar approximately eleven

nautical miles off the coast. Most of the crude oil floated

ashore along the Gulf Coast and the Galveston County

area. The predictable result was a significant downturn in

the fortunes of surrounding businesses dependent on the

tourist trade. Confronted with our opinion in State of La.

ex rel. Guste. v. M/V Testbank, 752 F.2d 1019 (5th Cir.

1989) (en banc) (no recovery of economic losses absent

physical injury to a proprietary interest),an innovative

group of merchants located in the vicinity of the oiled

beach suggest that they suffered the requisite physical in-

jury in that beachgoers, their customers, tracked the sticky

oil residue into their businesses. They offered ‘‘expert

testimony” in opposition to summary judgment for the

self-evident proposition that such “tracking” is the

| ait

A-7

foreseeable consequence of the spill. The district court

granted summary judgment concluding that such damage

was not foreseeable. The majority here affirm that decision,

apparently concluding that it was not foreseeable that the

oil would find its way to this beach. With deference,

although I am in substantial agreement with the majority

over the outcome of this case, I would travel a different

path.

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

833 F.2d 65, 68, we explained how foreseeability limits the

tortfeasor’s duty. We explained that it is ‘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 thour” ‘ful person, as a probable result of

the act or omission, considering the interplay of natural

forces and likely human intervention.”

I am persuaded that spilling millions of gallons of

crude oil into the sea eleven miles off the gulf coast created

a direct and foreseeable risk of tainting the coastline. It is

no answer that the precise coastal point to be hit was not

foreseeable;-it is enough that the risk realized be within the

set of foreseeable risks. Defendants point to the seventy-

mile movement of the spill and the weather and winds that

might have brought the oil ashore elsewhere. Stripped to

essentials, defendants urge that the vessel owner owed no

duty shoreward. This arguiment calls for far-reaching ex-

oneration of the shipping industry from responsibility to

the gulf coast, making curious indeed our effort in the

Testbank line of cases to adopt a pragmatic limitation on

the doctrine of foreseeability.

In Testbank, the collision in the Mississippi River

blocked river traffic causing “‘wave upon wave of suc-

cessive economic consequences” up the river and around it.

A-8

We confined recovery for injury to persons who suffered a

physical injury to a proprietary interest. For the reasons

that we explained there, we refused to allow recovery to ex-

tend to the full reach of forseeability.

The defendants in today’s case would have us believe

that foreseeability encompasses little more that specifical-

ly identified and inevitable outcomes. But surely the duty

of a person firing a gun into the air in a populated area ex-

tends to all persons in the zone of danger of his acts. That

is the essence of duty and foreseeability.

The majority understandably balks at the claims of

businesses who point to the tracking of oil. I would find the

answer in Testbank, rather than in a forced reading of

foreseeability, for the reasons we there explained. Our in-

sistence upon physical injury to a proprietary interest was

a forth-right pragmatic limit on the doctrine of foreseeabili-

ty. Undoubtedly many persons suffered some foreseeable

physical loss and yet were not allowed to recover general

economic losses. These physical losses were not a direct

consequence of the collision and spill but were the secon-

dary consequences of shipping delays.

Testbank limits which parties can recover for

foreseeable injuries. In this appeal, the claimants’ only

physical injury is two parties removed from the mosts im-

mediate Testbank plaintiff, the owner of the affected shore

property. The spillage came to rest upon the property of

one party, and was then removed by a second party—the

sticky-footed interlopers—onto the property of still a third

party, the plaintiffs in this case. Arguably such injury is a

foreseeable consequence of the spill, but its nexus with the

spill is a step removed, and so the plaintiffs are beyond the

ambit of permissible claimants under Testbank.

A-9

I would hold that these claimants cannot recover

general economic losses attributed to the general loss of

custom attending the spill because they have no physical

injury within the meaning of Testbank. I would affirm the

summary judgment for defendants, to this extent, allowing

them to proceed only with their claim for losses at-

tributable to actual physical injury and any losses which

that physical injury cause. I would not allow recovery for

losses attributable te the general loss of customers

resulting from the spoiled beach.

A-10

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-2450

88-2515

In the Complaint and Petition of U.S. ARMY CORPS OF ENGINEERS,

LLOYD‘S LEASING LIMITED, As Lake Charles Pilots, Inc. and Simrad

Owner, and Cammell Laird Shipbuild- Subsea, Inc. of Oslo Norway, Third-

ing, Ltd., et al, Petitioners-Appellees, Party Defendants-Appellees.

Vv.

CONOCO, Claimant-Third Party

Defendant-Appellee

In the Complaint & Petition of

LLOYD’S LEASING Ltd., etc.,

et al., Petitioners-Appellees,

v. v.

Bob WHITE et al., Claimants-Third

Willis LUCAS, et al,

Party Plaintiffs-Appeliants,

Claimants-Appellants.

Nos. 88-2450, 88-2515

FILED

MAY 19 1989

Appeal from the United States District Court for the

Southern District of Texas

ON PETITIONS FOR REHEARING AND SUGGESTIONS FOR

REHEARING EN BANC

(Opinion April 4, 5 Cir., 1989, Pad.)

( MAY 19, 1989 )

Before GEE, HIGGINBOTHAM and DUHE, Circuit

Judges.

A-11

PER CURIAM:

(~) The Petitions for Rehearing are DENIED and no

member of this panel nor Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc, (Federal Rules of Appellate Procedure

and Local Rule 35) the Suggestions for Rehearing En Banc

are DENIED.

( ) The Petitions for Rehearing are DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit Judges

who are in regular active service not having voted in favor

of it, (Federal Rules of Appellate Procedure and Local Rule

35) the Suggestions for Rehearing En Banc are also

DENIED.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is DENIED.

CLERK’S NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF THE

MANDATE.

ENTERED FOR THE COURT:

/s/_ illegible

United States Circuit Judge

A-12

APPENDIX C

In the Matter of the Complaint & Petition

of LLOYD’S LEASING LTD., as Owner

& Cammel Laird Shipbuilders., Ltd.

and Alvenus Shipping Co., Ltd., As

Charterers or Owners Pro Hac Vice, of

the M/T ALVENUS, Her Engines,

Tackle, etc., In a Cause of Exoneration

From or Limitations of Liability.

No. Civ. A. G-84-293.

United States District Court,

S.D. Texas,

Galvestson Division. _

Jan. 22, 1988.

During limitation of liability action by owner and

charterer of tanker whose cracked hull caused oil spill

which was beached at city, petition for summary judgment

as to claims was filed. The District Court, Hugh Gibson, J.,

held that: (1) recovery was denied to persons who claimed

economic damage exclusive of physical damage; (2)

damages caused by tracking the oil deposit from beach

were not foreseeable; (3) state was proper party to assert

loss of sand and beach; (4) direct physical damages were

recoverable; and (5) class certification was denied to

shrimpers allegedly injured by the spill.

So ordered.

1. Navigable Waters 35

Owner and charterer of oil tanker which had cracked

A-13

hull and caused oil spill which beached was not liable to

those persons who claimed economic damage exclusive of.

any physical damages by the effects of the oil on the beach.

2. Navigable waters 35

Damages to property resulting from persons track-

ing oil deposit from city beaches onto property, following

beaching of oil spill caused by tanker with cracked hull,

were not sufficiently foreseeable to allow recovery in limita-

tion of liability proceeding; third-party intervention which

allowed oil to be carried from beaches to claimants’ proper-

ty broke chain of foreseeability.

3. Navigable Waters 35

State, not private citizens, was proper party to

assert loss of sand, loss of beach, loss of vegetation and

resulting economic loss caused by beaching of oil slick after

tanker developed split in its hull and spilled oil off shore.

4. Navigable Waters 35

Direct physical damages resulting from beaching of

oil slick caused by tanker with cracked hull which was car-

ried to beach by currents and waves were foreseeable and

recoverable in limitation of liability proceeding.

5. Federal Civil Procedure 181

Shrimpers whose businesses were allegedly damaged

by arrival of oil slick caused by leading tanker were not en-

titled to class certification in limitation of liability pro-

ceeding; presence of only six shrimper plaintiffs after

publicity attending spill and _ repeated _ notices

demonstrated that class certification would not advance

A-14

the litigation. Fed.Rules Civ.Proc.Rule 23(a)(1), 28

U.S.C.A.

Charles R. Houssiere, III, Houstson, Tex., for White,

et al.

Mike Gallagher, Fisher, Gallaher, Perrin & Lewis,

Houston, Tex. for J.L. Sasser.

Susan Thiesen, Asst. Atty. Gen. and Ben F.

McDonald, Jr., Sp. Asst. Atty. Gen., Atty. General’s Of-

fice, Austin, Tex. for State of Tex.

H.S. Morgan, Jr., Theodore G. Dimitry, Vinson &

Elkins, Houston, Tex., for Conoco.

George W. Lederer, Jr., Paul W. Wommack, Ralph

K. Harrison, The Woodlands, Tex., for Mitchell Develop-

ment Corp. of the Southwest, Mitchel] Realty Co., The Fort

Crockett Hotel Ltd., and George P. Mitchell.

Charles Houssiere, Houssiere & Durant, Houston,

Tex., for Earl Stark.

Steve Williams, for City of Galveston.

Ervin A. Apffel, Jr., McLeod, Alexander, Powel &

Apffel, Galveston, Tex. for Mitchell Duncan, Ski Trek, Inc.

and City of Galveston.

Gordon Speights Young, Jack Shepherd, Houston,

Tex., R. Scott Blaze, Trial Atty., U.S. Dept. of Justice,

Washington, D.C. for U.S.A, U.S. Army Corps of

Engineers, Colonel Eugene Witherspoon.

A-15

Beck Smith, Smith & Stowers, Galveston, Tex., for

David Richard, Theo Carroll White, Charles Richard and

Billy Kesel.

Lester J. Lautenschlaeger, Jr., Lautenschlaeger &

Oberhelman, New Orleans, La., for third party defendant

Malcolm Gillis and Lake Charles Pilots, Inc.

James Patrick Cooney, John M. Elsley, Roystan,

Raynor, Vickery & Williams, Housston, Tex., for third par-

ty Silver Line, Ltd., and Silver Navigation, Ltd.

MEMORANDUM AND ORDER

HUGH GIBSON, District Judge.

The genesis of the current limitation of liability ac-

tion before the Court is to be found in 1984 when the M/T

ALVENUS, on a voyage from Venezuela to Lake Charles,

Louisiana, sustained a crack in her hull while in the

Calcasieu Pass Channel of the Gulf of Mexico. The

epicenter of the resultant oil spill was approximately seven-

ty miles distance from Galveston, Texas, and took several

days to reach the coastal city. Over 375 “Galveston”

claimants have filed claims against petitioners alleging

damages of varied and sundry natures.

Petitioners have filed four motions for summary

judgment, two of which were granted by this Court on

November 20, 1987. Claimants, in response, have filed a

joint motion to vacate and set aside the November orders.

Six of the claimants have also filed a motion for class cer-

tification. The ensuing responses and replies have become

“fragmented” and have led ‘‘to a confused presentation.”

Cononco’s Reply Memorandum to Pollution Claimants’

Responses to Motion for Summary Judgment. In order to

A-16

clarify the present legal and factual conundrum, the Court

will lay forth the legal principles by which it will decide the

case sub judice.

Petitioners have placed the claimants in three

categories based on the alleged damage suffered.! The

Court, although declining to follow petitioners’ classifica-

tion scheme, will, likewise, categorize the claimants in

question according to damages suffered. Claimants will be

classified in the following manner:

(1) those who suffered economic loss exclusive of

physical damage;

(2) those who suffered ‘‘tracking’’ damages and

resultant economic loss; and

(3) those who suffered direct physical impact

damages and resultant economic loss.

Thus, two of the three groups of claimants have suffered |

some type of physical damage in addition to the alleged

economic loss.

(1) As to the first category of claimants, State of

Louisiana ex rel Guste v. M/V Testbank, 752 F.2d 1019 (5th

Cir.) (en banc), cert. denied, 477 U.S. 903, 106 S.Ct. 3271, 91

L.Ed.2d 562 (1986) controls. The Court, in Testbank, held

that ‘physical damage to a proprietary interest [is] a pre-

requisite to recovery for economic loss in cases of uninten-

tional maritime tort.” 752 F.2d at 1020. the claimants in

the first category are, therefore, precluded from seeking

economic damages and the Court’s summary judgment

order of November 20, 1987, dismissing claimants therein

1 A fourth category is based upon a group of claimants who allegedly

failed to respond to petitioners’ interrogatories. As to this fourth

category, petitioners seek default judgments

ee TN Te

A-17

will be left undisturbed. Those claimants who are of the opi-

nion that they should not be considered under the first

category of claimants as delineated by the Court should file

individual, specific motions for reconsideration within

twenty (20) days of the date of this order.

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

772 F.2d 1217 (5th Cir. 1985), the Court determined that

Testbank did not apply because plaintiff had ‘suffered

physical harm to property in which it [had] a proprietary in-

terests.” Id. at 1222. The harm to plaintiff in Consolidated

consisted of damage to the physical equipment at plain-

tiff’s aluminum plant. Jd. at 1218. the Fifth Circuit remend-

ed the case for analysis under traditional tort principles ap- -

plied in admiralty. Id. On a second appeal, the Fifth Circuit

affirmed the trial court’s finding that the damage to plain-

tiff in Consolidated was not foreseeable as a matier of law.

Consolidated Aluminum Corp. v. C.F. Bean, 833 F.2d 65, 68

(5th Cir.1987), Aff’g, 639 F.Supp. 1173 (W.D.La. 1986), The

Fifth Circuit, in affirming the district court, perceived

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 in-

terplay of natural forces and likely human

intervention.”

Consolidated, 833 F.2d at 68. Applying the above defini-

tion, the Court concluded that the damage to plaintiff was

“beyond the pale of general harm which reasonably might

have been anticipatec ...”’ Jd.

[2j; In 1984, the vagaries of winds and currents

A-18

caused the beaches of Galveston and the surrounding areas

to be inundated with crude oil from a cracked tanker hull

seventy miles away. The second category of claimants suf-

fered physical damage as a result of third parties ‘‘track-

ing’’ oil into claimants’ businesses and condominiums and

onto the personal property therein. ‘“To be found liable, a

defendant must have ‘‘knowledge of a danger, [the danger

is} not merely possible but probable. . . "Jd. (citing

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

Cir.1961)). In view of the above interplay of human in-

tervention and Nature’s capriciousness, the Court finds as

a matter of law that the damages, both physical and

economic, resulting from the tracking of oil were not

foreseeable. In this instance, the tracking damages were in-

deed possible, but in no fashion probable. The element of

third-party intervention that aliowed the oil to be carried

from the beaches to the claimants’ businesses and con-

dominiums broke the chain of foreseeability. The Court,

therefore, modifies its partial summary judgment order of

November 29, 1987, so as to DISMISS claimants, not just

certain claims, who seek damages for physical and

economic damages.”

{3} A companion order will be entered dismissing

claimants who seek. in addition to tracking damages,

recovery for damage to the public beaches such as loss of

sand, loss of beach, loss of vegetation and the alleged resul-

tant economic loss. The party to seek damages of this

nature is the State of Texas, not private citizens. Further-

more, the Park Board of Trustees of the City of Galveston

is REINSTATED in the current cause as a claimant. Prior

summary judgment orders entered against, the Park Board

2 The Court finds that the damages sought pursuant to theories of In-

tentional tort and public or private nuisance are simply not sustainable

under the pleadings of this case nor under Testbank. See Tesbank, 752

F.2d 1019, 1030-31.

A-19

are, therefore, VACATED, but only insofar as they affect

the Park Board, unless otherwise stated. Finally, claimants

who are of the opinion that they do not fall into this second

category of claimants shall file individual, specific motions

for reconsideration with twenty (20) days of the date of this

order.

[4] The direct physical impact of oil on various in-

strumentalities, e.g. the hulls of boats, was precipaitated

without the aid of third-party human intervention but, in-

stead, flowed directly from the M/T ALVENUS via cur-

rents and waves. The foreseeability chain, in regard to

direct physical impact damages, remains unbroken and

petitioners, therefore, liable. Under Consolidated, 833 F.2d

at 68, the Court finds that both physical and economic

damages sustained as a result of the direct physical impact

of oil are recoverable. Sea-Arama, Inc., who seeks recovery

for costs incurred in the removal of oil from water intake

valves and the resultant economic damages, will be allowed

to continue as a claimant in the present case. Prior sum-

mary judgment orders entered against Sea-Arama are,

therefore, VACATED. Such orders are vacated only as to

Sea-Arama, Inc., unless otherwise stated. All claimants

who have suffered direct physical impact damages, as

described above, and have been dismissed in prior sum-

mary judgment orders shall file individual, explanatory

motions for reconsideration within twenty (20) days of the

date of this order.

[5] Claimants’ motion for class certification on behalf

of James Bates, et, al., fails in several respects. Under Rule

23(a)(1), Fed.R.Civ.P., a class action may be maintained if

‘the class is so numerous that joinder of all members is im-

practicable.”’ Since 1984, only six claimants in the class

seeking certification, shrimpers in Galvestson, Harris and

Chambers County, have come forth. No credible attempt

A-20

has been made by movants to demonstrate that the six

claimants are representative of a vastly larger “hidden’”’

class of shrimpers who have failed to file actions as

claimants. The publicity surrounding the Alvenus oil spill

and the necessary prerequisites, including repeated notices

in local papers, to the petition for limitation of liability

would seem to have brought forth those shrimpers who a

interested in pursuing their claims. Certification of a class

of shrimpers at this late date would in no way advance the

litigation of this cause or protect the rights of a possible

class. Furthermore, in Lykes Bros. Steamship Co., Inc., v.

Tug Bayou La Fourche, 1974 A.M.C. 1783, 1786

(S.D.Tex.1974). Judge Singleton found a “class claim’’ in-

appropriate and directly contrary to the purpose of a

limitation suit. The Court, for these reasons, respectfully

DENIES claimants’ motion for class certification at this

time.

Finally, the Court, on the basis of the record as it cur-

rently exists, DENIES petitioners’ motion for entry of

default judgment against those claimants who have failed

to respond to petitioners’ interrogatories. Claimants who

have failed to respond are, hereby, ORDERED to RES-

POND within twenty (20) day s of the date of this order.

Failure to respond will, once again, subject these claimants

to dismissal.

A-21

APPENDIX D

NOS. 88-2515/88-2450

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

NEW ORLEANS, LOUISIANA

IN ‘THE COMPLAINT AND PETITION OF LLOYDS LEAS-

ING, LTD., AS OWNER AND CAMMEL LAIRD SHIP.

BUILDERS, LTD. AND ALVENUS SHIPPING COMPANY,

LTD., AS CHARTERS AND OWNERS PRO HAC VICE OF

THE M/T ALVENUS, HER ENGINES, TACKLES, ETC.

VS.

CONOCO, INC.

Appellees/Third Party

Defendants/Claimants

VS.

WILLIS LUCAS, ET AL

Appellants/Claimants/

Third Party Plaintiffs

APPELLANTS‘ MOTION FOR REHEARING

TO THE HONORABLE JUDGES OF SAID COURT:

COME NOW Appellants and file this Motion for

Rehearing directed to this Court’s judgment and opinion

dated April 4, 1989 and would show as follows:

A-22

REHEARING ISSUE 1

THE COURT OF APPEALS ERRED IN AFFIRMING SUMMARY

JUDGMENT BECAUSE APPELLEES DID, IN FACT, OWE A DU-

TY OF DUE CARE TO APPELLANTS AND THEIR PROPERTY IN

THIS MASSIVE OIL SPILL DISASTER, THE COURT OF AP-

PEALS APPLYING A NEW AND INCORRECT LEGAL STAN-

DARD TO THIS MATTER.

REHEARING ISSUE 2

THE COURT OF APPEALS ERRED IN AFFIRMING SUMMARY

JUDGMENT BECAUSE APPELLANTS’ “TRACKING DAMAGE”

WAS FORESEEABLE AND APPELLEES’ CLAIMED INABILITY

TO PREDICT THE EXACT SPOT WHERE THE OIL SPILL

WOULD WASH ASHORE DID NOT RENDER THE “TRACKING

DAMAGE” UNFORESEEABLE AS A MATTER OF LAW.

REHEARING ISSUE 3

THE COURT OF APPELAS ERRED IN AFFIRMING SUMMARY

JUDGMENT BECAUSE COMPLEX CASES INVOLVING

MASSIVE OIL SPILLS SHOULD NOT BE DECIDED ON SUM-

MARY JUDGMENT, OUR SUPREME COURT GENERALLY

DIRECTING THAT “ISSUES OF FAR FLUNG IMPORT“ SHOULD

NOT BE DECIDED ON SUMMARY JUDGMENT AS A MATTER

OF “GOOD JUDICIAL ADMINISTRATION”.

REHEARING ISSUE 4

THE COURT OF APPEALS ERRED IN AFFIRMING SUMMARY

JUDGMENT BECAUSE THIRD PARTY HUMAN INTERVEN-

TION (PEOPLE TRACKING OIL OFF OF BEACHES ADJACENT

TO HOMES AND BUSINESSES INTO THOSE HOMES AND

BUSINESSES) DID NOT BREAK THE CAUSAL CHAIN OF

FORESEEABILITY AS A MATTER CF LAW.

A-23

ARGUMENT AND AUTHORITIES

GENERALLY

The panel majority calls for ‘far-reaching exonera-

tion of the shipping industry from responsibility” for

massive oil spills, in keeping with Judge Gee’s concurring

Testbank? opinion, suggesting rules to bar recovery in

“disaster” cases. The import of the majority opinion is

that anytime an oil tanker owner/operator is unable to

predict with exactitude the oil spill’s ultimate, precise land-

fall, oil spill harm is not foreseeable as a matter of law:

thus, the tanker owner/operator owes shoreside victims

“no duty” and is absolved from liability.4 The majority’s

rationale and holding is contrary to settled principles of

tort law and Fifth Circuit precedent. Indeed, the majority's

new test would exonerate one from shooting a gun into a

crowd because it was unpredictable who the bullet would

hit.5 The majority opinion is also contrary to Supreme

Court guidance against Summary Judgments in complex

cases of ‘far-flung import”’.

1 Slip. Op., at 2714 (Higginbotham, J., concurring and dissenting in

part).

2 State ex rel. Guste v. M/V Testbank, 752 F.2d 1019 (5th Cir. 1985) (en

banc) (Maj. op. by Higginbotham, J.).

3 Id, at 1032-33 (Gee, J., concurring).

4 Slip Op., at 2714.

5 Id, at 2714.

A-24

Il.

PROFOUND ISSUES OF PUBLIC IMPORT SHOULD

NOT BE DECIDED BY SUMMARY JUDGMENT

The Coast Guard accurately called this a “‘major”’ oil

spill. (Suppl. Tr. — Coast Guard Report, at 2). A major oil

spill is a disaster, because so much harm is caused to in-

dividuals, businesses, the economy, and the environment.

Here, for example, Appellees spilled 2-3 million gallons of

oil near the Gulf Coast, causing literally a disaster across

a broad sweep of every aspect of life in the affected area.

Where cases involve complex issues of profound

public import, our Supreme Court cautions against sum-

mary disposition. The reason for this salutory caution is

clear:

(Summary Judgment procedures, however

salutory where issues are clear-cut and simple,

present a treacherous record for deciding issues of

far-flung import .... We consider it . . . good

judicial administration to withhold decision of

the ultimate questions . . . until this or another

record shall present a more solid basis of findings

based on litigation or on a comprehensive state-

ment of agreed facts.

While we might be able, on the present record, to —

reach a conclusion that would decide the case, it

might well be found later to be lacking in the

thoroughness that should precede judgment of

this importance and which it is the purpose of the

judicial process to provide. (emph. added).

Kennedy v. Silas Mason Co., 334 U.S. 249, 256-7 (1948);

Anderson v. Liberty Lobby, 477 U.S. 242 255 (1986) (citing

A-25

Silas with approval); Arenas v. U.S., 322 U.S. 419, 434

(1944) (“duty of court . . . can be discharged in a case of this

complexity only by trial. ... ”, reversing Summary

Judgment).§

At bar, Kennedy’s cautionary principle has not been

applied. Instead, the majority decides what everyone

agrees was a disaster — on a “treacherous” record compos-

ed of affidavit and attorney argument. This was error and

not Kennedy’s good judicial administration’’.

III.

THE ULTIMATE IRONY

The ultimate irony appears at bar in the distinction

between the trial court ruling being appealed and the

fulcrum of the majority opinion — a matter no one appealed

from.

Tracking Damage Oil Spill ‘‘Bullet’’

Hits Galveston

Trial Court Not Foreseeable? Foreseeable®

6This is also the Fifth Circuit rule. U.S. v. Fryd Constr. Corp., 423 F.2d

980, 984 (5th Cir. 1970); Heywood v. Pub. Housing Administration, 238

F.2d 689 698 (5th Cir. 1956):

TOrder of 1/22/88 at 4:

“as a matter of law, .. . the damages . . resulting from the

sreee se oe enn ats Caneeeeee. ses The element of third

the chain of foreseeability’”’. (emph. added).

8Orders of 1/22/88 and 10/27/88, certain Galveston claimants to

recover for physical harm and damage due to oil-laden windblown mist.

A-26

Panel Majority Foreseeable? Not Foreseeable!®

The dissent noted the disparity between the decision ap-

pealed from and the basis of the majority opinion (Slip Op.,

at 2713-14).

The gist of the trial cour. Order appealed from was

the precise holding that

***The element-of-third party human interven-

tion that allowed the oil to be carried from the

beaches to . . . (Appellants’) businessés and con-

dominiums broke the chain of foreseeability.

(emph. added).

Order of 1/22/88, at 4. Clearly, the basis of the trial court’s

Order was “third party human intervention”. Appellants,

however, had submitted a hosts of expert affidavits that

“tracking damage” (i.e., tracking oil from the beaches to

Appellants’ homes’ and businesses) was — indeed — a

“common”, “very likely” and “‘highly probable” result of

a massive oil spill.11 The entire panel agrees that this is a

“common sense conclusion’’.!2 Thus, the very basis of the

9Stip. Op. at 2713. Judge Higginbotham (concurring and dissenting)

also agrees that Appellants’ “tracking damage” was foreseeable (Slip.

Op., at 2714).

10 Slip. Op., at 2713.

lly, 1165-76 (i.e., U.S. Coast Guard Veteran of 20 years experience in

oil spill investigation and clean-up, president of oil spill clean-up com-

pany involved in over 100 oil spills, college professor training oil spill

clean-up personnel for 11 years, etc.).

12 Majority, at 2713; Dissent, at 2714.

a —— ee!

A-27

trial court Order has been burst on appeal!3 and remand

should have resulted.

The majority (perhaps in keeping with the Testbank

concurrence) reached beyond the trial court holding being

appealed to produce a far-reaching exoneration of the ship-

ping industry from oil spill liability. Appellants certainly

did not appeal the trial court decision that oil on Galveston

beaches was foreseeable and Appellees launched no cross-

appeal on the matter.

IV.

FORESEEABILITY: THE “CONSOLIDATED” TEST

AND THE MAJORITY’S “NEW” ONE

As announced in Consolidated Aluminum Corp. v.

C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987):

harm .. . (is) . . . foreseeable . . . if (1) harm of a

general sort (2) to persons of a general class (3)

might have been anticipated by a reasonably

thoughtful person, (4) as a probable result of the

act or omission, (5) considering the interpllay of

natural forces and likely human intervention.

(numbering and emph. added).

The majority, based on the “general class” of victims

element,!4 reasoned that if oil spill landfall at Galveston

was not predicated with certainty, then harm to the

Galveston Appelants was not — as a matter of law —

13 See, e.g., Nunley v. M/V Dauntless, 727 F.2d 455 (5th Cir. 1984) (Rest.

of Torts2d $§442, 447); Watz v. Zapata Offshore Co., 431 F.2d 100 (5th

Cir. 1970) (adopting Rest. of Torts2d $435[i)).

14Stip. Op.,at 2713.

A-28

foreseeable. this “certainty” requirement is not the Con-

solidated standard. The new standard deletes Con-

solidate’s ‘‘general class’’ element, substituting an onerous

‘predictable with certainty” element.

Consolidated’s “general class’’!5 is made up (at bar)

by Gulf Coast individuals and businessses. Unlike the ma-

jority, Consolidated does not require the victims to be iden-

tified with exactitude — prior to the oil spill landfall — but

only that the “general class” of victims be identifiable. cf:

Testbank, supra at 1026 (general class of “commercial

fishermen were foreseeable, Plaintiffs whose interests .. .

(Defendant) had a duty to protect... . ”’).

The majority's new standard reasons that one’s

harm is not foreseeable as a matter of law — anytime the

tortfeasor cannot predict the exact spot where harm would

be felt.16 Under this new standard, a Defendant shooting a

gun inte a crowd would be absolved from liability because

he did not know precisely who the bullet would hit! While

such might meet the suggestion in Judge Gee’s

Testbank concurrence, it is not the correct

“foreseeability” test.17

15 It is noteworthy that Consolidated dealt with persons and businesses

suffering harm up to 6 miles inland; Appellants at bar suffered harm

within 300 yards inland.

16 Sip, Op., at 2714.

17 The panel majority agrees that “Appellee might reasonably an-

ticipate that the oil might wash ashore somewhere. . . ”* (Slip. Op., at

2713) but concludes that since the precise coastal point to be hit by the

oil spill ‘‘bullet’’ was not foreseeable, neither was the harm. (Jd). Thus,

the panel majority reasons that — since Appellees did not precisely

know that the oil spill would wash ashore in Galveston— Appellants’

harm was not foreseeable and Appellees were absolved of liability.

i feos en - Smee em ae

THE COAST GUARD REPORT: ACCURATE PROJECTIONS

NOT IMMEDIATELY AVAILABLE BUT CONCERN FOR

GALVESTON RAISED 1 DAY AFTER SPILL

The Coast Guard Report reflects that the computer

— generated ‘‘modeling and simulation studies’’ were pro-

duced in Seattle, Washington (Coast Guard Report, Appen-

dix IIB). The “studies ” did not include ‘‘on scene” obser-

vations, and specifically noted that

(tjo improve the accuracy of these trajectory

estimates, on scene observations .. . are

necessary. With such date . . . forecasting pro-

cedures could be initiated. . . . (emph. added).

While accuraate projections were not available (due to lack

of computer staff on-site observations),!® the Coast Guard

raised concern for damage to Galveston as early as July

31st — 1 day after the spill! (Coast Guard Report, at 4). On

August Ist, the computer staff met with Galveston of-

ficials (Id. at 5). On August 2nd ‘“‘boom deployment”’ at

Galveston Bay was planned. (Id, at 6) and a formal “‘alert”’

issued to Galveston officials (Id, at 6-7). The next day —

August 3rd — “the (tanker) owners’ representatives

established a command post . . . in Galveston” and began

hiring cleanup crews. (Id, at 7) “Over 200 miles of

coastline” was at risk (Id). That day — August 3rd — oil

began to wash ashore in Galveston (Jd).

Thus, while the majority adopts Appellees’ loose

reading of a map as the fulcrum for the decision, the Coast

Guard was expressing concern for oil spill harm to

18 This was remedied by the agreement of the computer staff to come

to Texas on August Ist. (Coast Guard Report, at 4-5).

A-30

Galvesston as early as July 31st — 1 day after the oil spill!

w VI.

1-IN-5- PROBABILITY OF HARM IS NOT ENOUGH

FORESEEABILITY AS A MATTER OF LAW?

Using Appellees’ argument (based loosely on a map),

the majority relied on “‘data’’ reflecting a 1-in-5 probability

of harm to populated Gulf Coast areas like Galvestson.!9

This 20% chance of harm is not enough foreseeability — as

a matter of law — under the majority’s new test‘ a 20%

chance of harm, thus, presents no fact issue to bar Sum-

mary Judgment! this new standard is accurately portrayed

by the dissent as enough to relieve one of liability for

shooting into a crowd, simply because the tortfeasor may

not have been exactly sure who the “bullet” would hit.?°

Clearly, the majority’s new standard is simply an exonera-

tion of the shipping industry from oil spill responsibility.?!

cf: Testbank, supra at 1032-3 (Gee, J., concurring).

WHEREFORE PREMISES CONSIDERED, Ap-

pellants pray that Rehearing be granted and, upon such,

the April 4th majority opinion be vacated, the trial court

judgment be reversed and remanded, costs be assessed

against Appellees and for such other and further relief as

may be just.

19 Slip. Op., at 2713 (340 miles of coastline, 60 miles being populated,

yields an approximate 1-in-5 probability of oil spill landfall).

20 Slip. Op., at 2714.

21 Id.

A-31

Respectfully submitted,

/ McLEOD, ALEXANDER, POWEL

& Apffel, P.C.

By: /s/ E. A. Apffel, Jr.

ERVIN A. APFFEL, JR.

Federal I.D. -2571

By: /s/ Otto D. Hewitt, III

OTTO D. HEWITT, III

Federal I.D. -283

By: _/s/ Michael L. Neely

MICHAEL L. NEELY

Federal I.D. -7295

802 Rosenberg; P. O. Box 629

Galveston, Texas 77553

(409) 763-2481; (713) 488-715 5

ATTORNEYS FOR APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing has been forwarded to all counsel of record

(counsel list attached) on this 2nd day of May, 1989.

/s/__ Otto D. Hewitt, III

OTTO D. HEWITT, III

A-32

ATTORNEY PARTY

James Patrick Cooney Lloyd’s Leasing, Ltd.

John Elsley Cammell Laird Shipbuilders

Lisa Wesley Alvenus Shipping Co., Ltd.

Royston, Rayzor, Vickery & Silver Line, Ltd.

Williams Silver Navigation, Ltd.

2200 Texas Commerce Tower Capt. Rudyard Cecil Shipley

Houston, TX 77002

Theodore Dimitry ) Conoco, Inc.

Henry S. Morgan

Vinson & Elkins

2600 First City Tower

Houston, TX 77002-6760

Ms. Mee Lon Lam U S Army Corps of

U. S. Dept. of Justice Engineers

Civil Division-Torts Branch

Aviation & Admiralty Section

P. O. Box 14271, Ben

Lester Lautenschlaeger Lake Charles Pilots Assoc.

Oberhelman .

424 Gravier Street, Suite 300

New Orleans, LA 70130

A-33

Charles R. Houssiere, III Bob White, et al

Robert K. Schaffer (Claimants)

Houssiere & Durant

1990 Post Oak Boulevard,

Suite 810

Houston, TX 77056

Ralph K. Harrison Mitchell Energy, et al

Mitchell Energy & Develop- (Claimants)

ment Corp.

The Woodlands, TX 77380

Susan Theisen State of Texas

Energy & Environmental Pro- (Claimants)

tection Div.

P. O. Box 12548

Austin, TX 78711-2548

Wendell Radford Stephen O. Johnson, et al

Benckenstein, Oxford, (Claimants)

Radford & Johnson

P. O. Box 150

Beaumont, TX 77704

Henry Oncken . United States

U.S. Attorney

515 Rusk Avenus, 12th Floor

Houston, TX 77002

Ervin A. Apffel, Jr. Willis Lucas, et al

W. Daniel Vaughnm J. L. Sasser, et al

Michael L. Neely City of Galveston

McLeod, Alexander, Acapulco Homeowners

Powel & Apffel Assoc., et al

802 Rosenberg, P. O. Box 629 James Bates, et al

Galveston, TX 77553 Ski Trek, Inc.

A-34

OF COUNSEL FOR J. L. SASSER, ET AL CLAIMANTS:

Michael T. Gallagher

Richard Hogan, Jr.

Fisher, Gallagher, Perrin & Lewis

70th Floor Allied Bank Plaza

1000 Louisiana

Houston, TX 77002

13.

14.

A-35

APPENDIX E

“TRACKING DAMAGE” CLAIMANTS

Willis Lucas,. Individually and d/b/a The Reef Con-

dominium Asscciation.

The Commodore Hotel, a partnership.

Las Palmas, Inc.

Galvestson First Financial Corp. d/b/a Econo Lodge

of Galveston.

Leisure Services, Inc.

Larry L. May d/b/a May’s Concessions.

Pam Walker, Individually and d/b/a Beach Pocket

park #1 Concession, a partnership.

Carolyn Johnson, Individually and d/b/a Beach

Pocket part #1 Concession, a partnership.

Dennis Swearingen, Individually and d/b/a Beach

Pocket park #1 Concession, a partnership.

GTG/Sanric Galveston Joint Venture d/b/a Ramada

Inn.

Beryl Ames.

Morris L. Bayard.

Russell S. and Barbara P. Bentley.

William H. Berry.

26.

27.

30.

31.

32.

A-36

Jane S. Bickel.

Margaret P. Buchanan.

Richard L. Burleson.

Leoncio Z. Campos.

Herbert V. Carson, Jr.

Douglas H. Cashmore.

Fred A. ond Iva Cash.

Archie T. Chapman.

Walter C. Cherry.

Thomas J. Couinard.

Marion R. Clark.

Charles F. Cole.

Walter C. Corbin.

P. Richard and Carolyn M. Dalton

Jerald L. Darnold.

Carol L. Davis.

David F. Decort.

John D. Dedivitis.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

A-37

Melba Joy Derrick.

Jack Q. Dunaway.

Mitchell Duncan.

Roger M. Feig.

Anthony and Margaret Filyk.

John M. Floyd. ;

Emery and Lillian Fontenot.

Stephen State

Phillip E. Grossman.

J. M. Haggard.

Garnet M. Heishman.

Michael T. Hennings.

Mack D. Hickman.

Sally A. Hintz. |

Dennis O. and Diane K. Holiday.

Diane M. Hood.

Thomas Grant Johnson.

Vance Jow.

66.

67.

A-38

Vic F. Jue. -

Joseph L. Jurica.

Charles R. Kelly.

Anthony M. Kindred.

Cliff C. and Hazel S. Laborde, Jr.

Paul R. Lawrence.

Saul G. Levin.

Michael A. Levine, M.D.

Charies J. Loew.

Ronald Eugene Lohec.

William S. Magness.

Hugh L. Mayo.

Luc C. R. Mazzini.

Carol McAndrews.

Jerry P. and Constance A. Metz.

Thelma M. Moore.

Delilah J. Morgan.

Robert Norris.

sD i a i

A-39

James K. Owens.

Lorraine Panfilli.

Archie F. Panfilli, Jr.

Mark A. and Karen M. Peterson.

Roger and Jill Peterson.

Robert J. Phillips.

Horacio A. and Carole B. Prado.

Tom W. Ritter.

John M. T. Ros.

Thomas V. Ryan.

Anthony D. Sabino

Joseph J. Saia.

Bobby S. Sallee.

J. H. and Lindsay Samuel.

Frank G. Satterfield.

Harold H. Schierloh.

Donald S. Schiller.

Arthur J. Schroeder.

103.

104.

A-40

Walter A. and Leona F. W. Schroeder.

Richard Scobey.

Robert R. Scott.

Charles E. Shaver.

Hasdell Sheinberg.

Billy Bob Shiflett.

Louis A. Sordahl.

— - --

Gerald W. Spotts.

Dennis S. Stepanik.

Stanley R. Strassburg.

Nick and Mary H. Suciu, Jr.

R. E. Sullivan, M.D.

L. W. and Hazel S. Surratt.

R. E. Sullivan, M.D.

Alan L. and Renee N. Tucei.

Neal Lloyd Wallach.

Jimmy E. Walters.

Douglas Watts.

105.

106.

A-41

Kenneth W. Westra.

Cyril Wolf. _

David L. Wolf.

James A. Woodward.

Eugene J. Woznicki.

Rajendran and Poh-Chooh Ambiavagar.

Hal F. Anders.

Ivan Dale Browne.

Julian Byrd.

C. Ronald Capps.

Charter Financial Group.

David Cisco.

Robert W. Clum.

Melvin E. and Mary Cowart.

Clark Griswold.

Robert A. Gritta

Stephen W. C. Holbrook.

Charles Hunsinger.

123.

124.

125.

126.

127.

128.

129.

130.

131.

182.

133.

134.

135.

A-42

Ralph Douglas James.

Leonard Leon.

Raymond Ludena.

Roy McIntosh.

Charles E. Neumann.

Hugh E. Parsons.

Richard C. Redpath.

Ernest Richardson.

Raul Rivera.

Richard Rothfeld.

Walter J: Teachworth, Individually and d/b/a

Sherwood Village.

Ann Keeling.

James Karolik.

jf. pasts Py) eee en a eR ES oe

A-43

IN THE

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

CAUSE NO. 88-2450

IN THE COMPLAINT AND PETITION OF LLOYDS

LEASING, LTD., AS OWNER AND CAMMEL LAIRD SHIP-

BUILDERS, LTD. AND ALVENUS SHIPPING COMPANY,

LTD., AS CHARTERS AND OWNERS PRO HAC-VICE OF

THE M/T ALVENUS, HER ENGINES, TACKLES, ETC.

Appellees/Petitioners

CONOCO, INC.

Appellees/Third Party

Defendants/Claimants

BOB WHITE, ET AL

Appellants/Claimants/

Third Party Plaintiffs

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, APPELLANTS, BOB WHITE;

JAMAICA BEACH IMPROVEMENT COMMITTEE;

GEORGE M. WILSON; JOSEPH A. SHAIA; CAPTAIN

TOM E. DORAN; WINDSOR T. and HELEN M.

ANDERSON; WILLIAM J. HITZHUSEN; MARION

TRAVIS and DOLORES ANN PAIR; JERRY KNAUFF;

DWIGHT R. BOREL; FRANCIS M. DARR, JR.; GOR-

DON SCHRADER; WILLIAM C. SHADDOCK;

ROBERT J. MOORE; JERRY R. SCHRADER;

A-44

LAWRENCE R. ELBERT; BRIGGS MOTOR COM-

PANY; JAMES DAVID BRIGGS AND HUGH ROGERS

FERGUSON as Independent executors of the Estate of

Luella Grace Briggs, hereinafter Appellants, and files this

their Brief in the

yt.

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