Bourgeois v. Louisiana Power & Light Co.

620 So. 2d 306, 1993 La. App. LEXIS 1923, 1993 WL 166303
CourtLouisiana Court of Appeal
DecidedMay 12, 1993
DocketNo. 92-CA-483
StatusPublished
Cited by1 cases

This text of 620 So. 2d 306 (Bourgeois v. Louisiana Power & Light Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bourgeois v. Louisiana Power & Light Co., 620 So. 2d 306, 1993 La. App. LEXIS 1923, 1993 WL 166303 (La. Ct. App. 1993).

Opinion

GRISBAUM, Judge.

This appeal concerns personal injuries sustained in an accident involving a shrimping vessel and an overhead electrical power line. We affirm.

ISSUE

The threshold question presented is whether the trial court erred in finding the defendant, Louisiana Power & Light Company (LP & L), negligent.

BASIC RECORD FACTS AND PROCEDURAL HISTORY

This matter was previously before our Court on an issue of summary judgment. Bourgeois v. La. Power & Light Co., 556 So.2d 1292 (La.App. 5th Cir.1990), writ denied, 563 So.2d 877 (La.1990). The facts were accurately set forth as follows:

Barry Bourgeois, captain of the commercial fishing vessel, Captain Barry, and deckhand [sic] Carlton Santiny set out from the bay side of Grand Isle in the afternoon of May 9, 1988 to shrimp. They navigated east, around the Gulf side of Grand Isle and proceeded to Ca-minada Pass. It was necessary for the Captain Barry to take the longer route around because the clearance between the water and a fixed bridge at the west end of the island on Louisiana Highway 1 would not permit safe passage for the vessel. An aerial power line[,] maintained by LP & L[,] crossed the mouth of Caminada Pass on the gulf side of the bridge.
When they arrived at the Pass, about 6:00 p.m., the two men laid anchor on the gulf side of the power line and waited for night-fall to begin shrimping operations. They shrimped until about midnight. Because the power line was also the demarcation used by the Wildlife and Fisheries for the division of open shrimping areas, the Captain Barry was anchored about fifteen feet from the line for the night. When anchor was set the tide was receding, moving the vessel away from the line. However, while the crew slept, the tide changed[,] and the vessel drifted the extent of the anchor rope bringing the vessel under the line. When the men awoke at about 8:00 a.m. they discovered they were on the bay side of the power line at rising tide.
Plaintiff started the motor and navigated the Captain Barry back out toward the Gulf. The antenna on top of the mast of the Captain Barry either came in contact with or got close enough to the line to receive an arc of electricity which sent high voltage to ground through the vessel’s radio[,] causing an explosion and fire in the cabin of the Captain Barry. Plaintiff, who was at the helm, was seriously injured.

Id. at 1293-94.

A bench trial on the merits was held in September 1991. The trial court, finding the plaintiff to be 66 and ⅜ percent at fault and the defendants 33 and ½ percent at fault, entered judgment in favor of the plaintiff in the amount of $216,745.33, a sum representing $650,236 of total damages proportionately reduced by the plaintiff’s degree of fault. The judgment also [308]*308cast LP & L liable for court costs, expert witnesses, and legal interest. It is from this judgment that LP & L has appealed.

ANALYSIS

In a previous decision of this matter, a panel of this Court determined that this case falls within admiralty jurisdiction. Bourgeois, supra. Our Court stated therein that

[sjuch jurisdiction is proper when a tort occurs on the high seas or on navigable waters and the plaintiff can show that the wrong “bears a significant relationship to traditional maritime activity.” ... In the instant case, the accident occurred at the mouth of Caminada Bay, a navigable waterway, while plaintiff was engaged in commercial shrimping activity. Thus, both the situs and nexus requirements for admiralty jurisdiction are met.

Id. at 1294 (citations omitted).

LAW

In applying the doctrine of the “law of the case,” by which an appellate court will not reconsider earlier rulings in the same case on a subsequent appeal, Board of Levee Comm’rs of Orleans Levee Dist. v. Newport Ltd., 578 So.2d 191 (La.App. 4th Cir.1991), writ denied, 584 So.2d 681 (La.1991), writ denied, 584 So.2d 683 (La.1991), we are bound by our previous findings. We, therefore, must decide this case under the substantive federal law of admiralty.

The United States Supreme Court has stated that “there is no doubt that the United States possesses the power to control the erection of structures, in navigable waters.” United States v. Appalachian Elec. Power Co., 311 U.S. 377, 405, 61 S.Ct. 291, 298, 85 L.Ed. 243 (1940). This power arises from the commerce clause of the Constitution, art. I, § 8, cl. 3, which has long been interpreted by the courts to necessarily include the power over navigation. Id. 311 U.S. at 405-06, 61 S.Ct. at 298.

In accordance with this power to control obstructions of navigable waters, 33 U.S.C. 403 provides as follows:

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

Pursuant to this authority, the United States Army Corps of Engineers on June 4, 1969 issued a permit to LP & L to “install and maintain an aerial crossing for electric power lines, across Caminada Pass,” which was, by the permit, required to have a clearance height of not less than 38 feet above mean sea level. In 1970, the construction of the power line by LP & L was completed.

Mr. Leonard C. Quick, the plaintiff's expert, stated that the lowest point of the sag in the power line was 38 feet, 1 inch whereas Mr. Charles M. Camp, the expert for LP & L, testified that the lowest point in the line was 39.6 feet. The trial court found that “Mr. Camp was more believable” and, therefore, implicitly accepted that the line’s height was 39.6 feet.

It is well-settled that “the trial court’s determination of the credibility of the witnesses is entitled to great weight and should not be disturbed on appellate review unless manifestly erroneous....” Guy T. Williams Realty, Inc. v. Shamrock [309]*309Constr. Co., 564 So.2d 689, 694 (La.App. 5th Cir.1990), writ denied, 569 So.2d 982 (La.1990) (citation omitted). After carefully reviewing the testimony of these two experts, we cannot say that the trial court was clearly wrong. We, therefore, conclude that the height of the power line clearly met with the requirements of the Corps of Engineers’ permit.

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Related

Louisiana Power & Light Co. v. Bourgeois
510 U.S. 1165 (Supreme Court, 1994)

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Bluebook (online)
620 So. 2d 306, 1993 La. App. LEXIS 1923, 1993 WL 166303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bourgeois-v-louisiana-power-light-co-lactapp-1993.