                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                  F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   March 23, 2006
                               FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                                                                      Clerk


                                       No. 04-31069



In Re: In the Matter of the Complaint of TAIRA LYNN MARINE
LIMITED NUMBER 5, LLC, as Owner of the M/V MR. BARRY for
Exoneration From or Limitation of Liability


TAIRA LYNN MARINE LIMITED NUMBER 5, LLC; ET AL.,

                                                                         Plaintiffs-Appellants,
                                          versus
JAYS SEAFOOD, INC.; ET AL.,

                                                                                   Defendants,

E. J. MASON, Individually
and doing business as Mason Seafood,

                                         Defendant - Claimant - Third Party Plaintiff -Appellee,

COASTLINE MARINE, INC.; MARINE TURBINE TECHNOLOGIES, LLC; MTT
PROPERTIES, LLC; MTT MANUFACTURING, LLC; MORTON INTERNATIONAL,
INC.; CVD, INC., doing business as Rohm & Haas Advanced
Materials; TWIN BROTHERS MARINE; COY REEKS, Individually
and doing business as Riverfront Seawalks and Bulkheads; TWIN
BROTHERS MARINE, CORP.; BAGALA’S QUALITY OYSTERS, INC.; DOUGLAS
OLANDER, Individually and doing business as Big D’s Seafood;
CRYSTAL OLANDER, Individually and doing business as Big D’s
Seafood; IVO JURISICH, Individually and doing business as Blue
Gulf Seafood, Inc.; TOMMY KLEINPETER, Individually and on behalf
of Cajun Wireline, Inc.; NORTH AMERICA SALT CO.; CAREY SALT, CO.;
PAM DORE, Individually and on behalf of Cove Marina; LEGNON
ENTERPRISES, INC.,

                                         Defendants - Claimants - Cross Claimants -Appellees,
                                           versus

WATER QUALITY INSURANCE SYNDICATE,

                                                                 Defendant-Claimant-Appellant,

LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT,

                                     Defendant-Counter Defendant-Cross Defendant-Appellant,

KIRBY INLAND MARINE LP, formerly known as Kirby Inland Marine, Inc.,

                                            Third Party Defendant-Cross Defendant-Appellant.



In Re: In the Matter of the Complaint of Kirby Inland Marine,
LP, formerly known Kirby Inland Marine, Inc., as Owner of the T/B
Kirby 31801 for Exoneration From or Limitation of Liability

KIRBY INLAND MARINE, formerly known as Kirby Inland Marine, Inc.
as owner of the T/B Kirby 31801,

                                                         Plaintiff - Cross Defendant - Appellant,

                                           versus

DAVID J. ANDRAS, JR.; ET AL.,

                                                                                    Defendants,

E. J. MASON, Individually and doing business as Mason Seafood,

                                                                 Defendant - Claimant - Appellee,

COASTLINE MARINE, INC.; MARINE TURBINE TECHNOLOGIES, LLC.; MTT
PROPERTIES, LLC; MTT MANUFACTURING, LLC; MORTON INTERNATIONAL, INC.;
CVD, INC., doing business as Rohm & Haas Advanced Materials; TWIN
BROTHERS MARINE, INC.; COY REEKS, Individually and doing business
as Riverfront Seawalks and Bulkheads; TWIN BROTHERS MARINE, CORP.;
BAGALA’S QUALITY OYSTERS, INC.; DOUGLAS OLANDER, Individually and
doing business as Big D’s Seafood; CRYSTAL OLANDER, Individually
and doing business as Big D’s Seafood; IVO JURISICH, Individually


                                              2
and doing business as Blue Gulf Seafood, Inc.; TOMMY KLEINPETER,
Individually and on behalf of Cajun Wireline, Inc.; NORTH AMERICA
SALT CO.; CAREY SALT CO.; PAM DORE, Individually and on behalf of
Cove Marina; LEGNON ENTERPRISES, INC.,

                                               Defendants - Claimants - Cross Claimants -Appellees.



                           Appeal from the United States District Court
                              for the Western District of Louisiana


Before BENAVIDES, STEWART, and OWEN, Circuit Judges.

CARL E. STEWART, Circuit Judge:

       The primary issue on appeal is whether claimants who suffered no physical damage to a

proprietary interest can recover for their economic losses as a result of a maritime allision. Fourteen

businesses and business owners brought claims under the general maritime law, the Oil Pollution Act

of 1990 (OPA), 33 U.S.C. §§ 2701-2761 (2000), the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 (2000), and state law. The

appellants filed motions for partial summary judgment to dismiss these claims, which the district court

denied. We reverse.

                      I. FACTUAL AND PROCEDURAL BACKGROUND

       On June 19, 2001, the M/V MR. BARRY and its tow, the T/B KIRBY 31801, allided with

the Louisa Bridge in St. Mary Parish, Louisiana. Kirby Inland Marine, L.P. (“Kirby Inland”) owned

the barge; Taira Lynn Marine, Inc. (“Taira Lynn”) owned and operated the tug; and the Louisiana

Department of Transportation and Development (“the State”) owns the bridge. The cargo on the

barge, a gaseous mixture of propylene/propane, discharged into the air as a result of the allision.



                                                  3
Consequently, the Louisiana State Police ordered a mandatory evacuation of all businesses and

residences within a certain radius of the Louisa Bridge.

       Taira Lynn initiated the underlying litigation under the Limitation of Liability Act, 46 U.S.C.

app. § 183 (2000), in which several hundred claims were filed. The original proceeding also

consolidated two declaratory judgment actions involving insurance coverage issues. Fourteen

businesses and business owners (collectively, “Claimants”) that are parties to this appeal filed claims

in the limitation action seeking to recover damages under the general maritime law, OPA, CERCLA,

and state law.

       Because of the complexity of the case, the district court referred discovery to the magistrate

judge who limited the initial phase of discovery to the claims alleging solely economic loss. Taira

Lynn, Kirby Inland and the State then filed motions for partial summary judgment on the grounds that

Claimants’ recovery for economic losses unaccompanied by damage to a proprietary interest is barred

by Louisiana ex. rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1023 (5th Cir. 1985) (en banc).

Those claims alleging direct property damage and/or personal injury as well as economic loss were

not included in the motions.

       The district court concluded that it was “foreseeable that an allision between a barge and the

Louisa swing bridge would disrupt the only means of ingress and egress to Cypremore [sic] Point.”

In re Taira Lynn Marine Limited No. 5, 349 F. Supp. 2d 1026, 1032 (W.D. La. 2004). Reasoning

that the claims were confined to a limited geographic region and that Claimants were making

commercial use of the bridge, the court endorsed a “geographic exception” to the rule barring

recovery for economic losses absent physical damage and concluded that the claimants alleging solely

economic losses should have an opportunity to present their claims in court. Id. at 1035. The court


                                                  4
concluded that not all of the claimants alleged purely economic losses and thus, those claims survived

the motion for summary judgment. Accordingly, the court denied the motions for partial summary

judgment as to each of the fourteen claimants. The court also concluded that the OPA and CERCLA

claims were not ripe for summary judgment because they raised genuine issues of material fact and

were outside of the scope of discovery. Taira Lynn, Kirby Inland, the State, and Water Quality

Insurance Syndicate (collectively, “Appellants”) appeal the district court’s rulings. The district court

certified the judgment as appealable pursuant to 28 U.S.C. § 1292(b) and this court granted

permission to appeal.

        Before we address the claims at issue, we find it necessary to emphasize what is not before

us. Appellants’ motion for summary judgment did not include claims involving personal injury,

physical damage, or the claims of commercial fishermen. Thus, the only claims before this court are

claims for purely economic losses.

                                   II. STANDARD OF REVIEW

        This court reviews a district court’s summary judgment decision de novo, applying the same

legal standards as the district court. Am. Home Assurance Co. v. United Space Alliance, LLC., 378

F.3d 482, 486 (5th Cir. 2004). “A summary judgment motion is properly granted only when, viewing

the evidence in the light most favorable to the nonmoving party, the record indicates that there is no

genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of

law.” Id. (citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

                  III. CLAIMS PURSUANT TO GENERAL MARITIME LAW

A.      Applicable Law




                                                   5
        It is unmistakable that the law of this circuit does not allow recovery of purely economic

claims absent physical injury to a proprietary interest in a maritime negligence suit. In Robins Dry

Dock & Repair v. Flint, 275 U.S. 303, 309 (1927), the Supreme Court held that a tortfeasor is not

liable for negligence to a third person based on his contract with the injured party. In Louisiana ex.

rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1023 (5th Cir. 1985) (en banc), this court concluded

that Robins is a pragmatic limitation on the doctrine of foreseeability. We reasoned that “[i]f a

plaintiff connected to the damaged chattels by contract cannot recover, others more remotely situated

are foreclosed a fortiori.” 752 F.2d at 1024. Accordingly, we reaffirmed the rule that there can be

no recovery for economic loss absent physical injury to a proprietary interest. Id.

B. Summary of the Claims

        Because of the number of parties involved in this appeal, we find it helpful to briefly

summarize the underlying claims. Cajun Wireline, Inc. (“Cajun”), a full service slick wireline provider,

claims that three of its jack up boats could not perform their duties due to the allision and subsequent

evacuation. Coastline Marine, Inc. (“Coastline”), a pile driving business, claims it was unable to

perform work on its contracts as a result of the evacuations. Pam Dore, doing business as Cove

Marina (“Cove Marina”), claims loss of revenues and sales from a convenience store as a result of

the evacuation. Legnon Enterprises (“Legnon”) claims lost charter revenues and lost sales and

revenues due to the evacuation. Coy Reeks, doing business as Riverfront Seawalls and Bulkheads

(“Riverfront”), claims he had to leave his equipment on the island during the evacuation and as a

result could not work for one week. Twin Brothers Marine (“Twin Brothers”), a fabrication and dock

facility, claims it was forced to halt work in progress for two construction projects. Marine Turbine

Technologies (“MTT”) claims that it suffered physical damage in the form of toxic gas permeation


                                                   6
on its property. North American Salt Company/Carey Salt Company (“North American”) claims it

had to suspend operations due to the discharge of the gas into the air. Morton International

(“Morton”) claims it began to shut down operations before the evacuation order was issued and that

its whollyowned subsidiary, CVD Incorporated d/b/a Rohm & Haas Advanced Materials (“Advanced

Materials”), suffered physical damage. Advanced Materials is a chemical vapor deposition facility that

manufactures material used to make specialty lenses for military equipment and other purposes. It

claims that two of its manufacturing runs had to be prematurely terminated and the company lost the

materials in those runs and could not sell the products. Big D’s Seafood (“Big D’s”), Blue Gulf

Seafood, Inc. (“Blue Gulf”), and Bagala’s Quality Oysters (“Bagala’s”) claim lost revenues from their

wholesale fishing operations. Mason Seafood (“Mason”) claims it lost eighty-eight boxes of dressed

crabs that spoiled in a freezer when law enforcement officials shut off the electricity during the

evacuation.

C. Analysis

1. Claimants alleging no physical damage

       The district court concluded that Cajun, Coastline, Cove Marina, Legnon, Riverfront, and

Twin Brothers suffered no physical damage; however, the court endorsed a geographic exception to

the TESTBANK rule and concluded that the claimants should have the opportunity to prove that their

damages were foreseeable and proximately caused by the allision. The court concluded that Blue

Gulf, Big D’s and Bagala’s either suffered physical damage or satisfied the commercial fishermen

exception1 to TESTBANK, and denied summary judgment as to those claims as well. The district


   1
    Relying, inter alia, on the Ninth Circuit’s decision in Union Oil Co. v. Oppen, 501 F.2d 558 (9th
Cir. 1974), the district court in TESTBANK, denied summary judgment as to the commercial
fishermen who “were exercising their public right to make a commercial use of those waters.”

                                                  7
court concluded that MTT’s and North American’s claims of physical damage in the forms of the

presence of gas on their properties satisfied TESTBANK; accordingly, it denied summary judgment.

The court also concluded that Morton, along with Advanced Materials, satisfied the physical damage

requirement. (Advanced Materials’s claims are addressed below.)

       Appellants’ argue that the district court erred in denying their motions for partial summary

judgment because these claimants did not suffer physical damage to a proprietary interest, and thus,

their claims for economic loss are barred by our decision in TESTBANK. Claimants make several

arguments in support of the district court’s denial of summary judgment. Cajun, Coastline, Cove

Marina, Legnon, Riverfront and Twin Brothers argue that their claims should be subject to traditional

foreseeability/proximate cause evaluations, asserting that their businesses are located in close

proximity to the accident site and that they all worked and/or resided within the evacuated area. They

also argue that this case is distinguishable from TESTBANK because that case involved forty-one

lawsuits, whereas here, fourteen claims are the subject of these motions for summary judgment. Blue

Gulf and Big D’s argue they sustained physical impact and damage from the allision and that they had

to destroy or decontaminate their products and equipment. North American and MTT allege they

suffered physical damage because the gaseous cargo became physically present on their properties.




Louisiana ex rel. Guste v. M/V TESTBANK ,524 F. Supp. 1170, 1173-74 (E.D. La. 1981). On
appeal, we recognized the argument in favor of an exception for commercial fishermen, but left the
contours of such an exception for another day because the claims of the commercial fishermen were
not before us. See TESTBANK, 752 F.2d at 1027 n.10.

                                                  8
North American and Morton2 claim that they shut down operations in order to prevent damage to

their equipment and products.

        Contrary to the district court’s conclusion, twelve of the fourteen businesses that are parties

to this appeal suffered no physical damage attributable to the allision and thus, their claims are barred

by TESTBANK. There is no geographic exception to the TESTBANK rule and there is no exception

based on the number of claimants. The TESTBANK court expressly rejected the case-by-case

approach urged by Claimants, and adopted by the district court in the case at bar. In Reserve

Mooring Inc. v. American Commercial Barge Line, LLC, 251 F.3d 1069, 1071-72 (5th Cir. 2001),

this court reversed the district court’s conclusion that TESTBANK “is merely an application of the

general requirement that damage be foreseeable to be recoverable in tort,” and concluded that

“physical injury to a proprietary interest is a prerequisite to recovery of economic damages in cases

of unintentional maritime tort.” Additionally, as we explained above, Bagala’s, Big D’s and Blue

Gulf’s claims, if any, as commercial fishermen were not included in the motions for partial summary

judgment; only their claims as wholesale fishermen were included. Accordingly, the district court

erred in concluding that these claimants satisfied the commercial fishermen exception to TESTBANK.

Their claims are for economic losses from their wholesale operations, and thus, they are barred by

TESTBANK. While other jurisdictions may have abandoned or relaxed the bright line rule of Robins

and TESTBANK, this circuit “has not retreated from TESTBANK’s physical injury requirement,”

Reserve Mooring, 251 F.3d at 1071. Therefore, the district court erred in denying Appellants’

motions for partial summary judgment as to Cajun, Coastline, Cove Marina, Legnon, Riverfront,


   2
    Because we conclude that the district court erred in denying Appellants’ motions for summary
judgment as to Advanced Materials’s claims, we need not address Morton’s argument based on its
ownership of its Advanced Materials’s facilities.

                                                   9
Twin Brothers, Blue Gulf, Big D’s and Bagala’s. These claimants have not suffered physical damage;

therefore, their claims are barred by our decision in TESTBANK.

       Likewise, the district court erred in concluding that MTT, North American, and Morton

suffered physical damage sufficient to satisfy TESTBANK. MTT’s and North American’s arguments

that the physical presence of the gas on their property satisfies TESTBANK’s physical damage

requirement are unpersuasive. These claimants have not raised an issue of fact as to whether the gas

physically damaged their property nor caused any personal injury; indeed, as noted above, such claims

were not subjects of Appellants’ motions for partial summary judgment. Nor are we persuaded by

North American’s and Morton’s arguments that they mitigated damages by shutting down their

operations.

       In Corpus Christi Oil & Gas Co. v. Zapata Gulf Marine Corp., 71 F.3d 198 (5th Cir. 1995),

an allision between a barge and a platform damaged a gas riser, owned by Houston Pipeline

Company, which was connected to the platform owned by Corpus Christi. Realizing the allision was

about to occur, workers on the Corpus Christi platform shutdown operations to prevent fire or

explosion. During the two weeks it took to repair Houston Pipeline’s gas riser, Corpus Christi flared

gas to prevent loss of its wells. This court concluded that “[e]xcept for its acts in mitigation, Corpus

Christi would have suffered great physical damages to its wells.” Id. at 202. Accordingly, the court

affirmed the district court’s award of damages for the costs incurred in flaring the gas. Id.

Nevertheless, the court disallowed Corpus Christi’s damages resulting from the inability to produce

and sell its gas during the repair period, reasoning that “[t]he additional economic losses that Corpus

Christi seeks to recover occurred solely and only because of the physical damage that was done to

Houston’s property,” and that “Corpus Christi lost its gas sale profits because it could not use the


                                                  10
pipeline, not because it was flaring its own gas.” Id. Unlike the plaintiffs in Corpus Christi, North

American and Morton did not lose any of the salt in their mines and they are not claiming costs of

mitigation. Instead, their claims are for lost revenues caused by the inability to use their facilities; such

claims are not recoverable. See id. at 202. Accordingly, the district court erred in denying Appellants’

motions for partial summary judgment as to MTT, North American, and Morton.

        Finally, we note that Claimants may not recover under state law. See IMTT-Gretna v. Robert

E. Lee SS, 993 F.2d 1193, 1195 (5th Cir. 1993) (“Maritime law specifically denies recovery to non

proprietors for economic damages. To allow state law to supply a remedy when one is denied in

admiralty would serve only to circumvent the maritime law’s jurisdiction.”), supplemented by, 999

F.2d 105 (5th Cir. 1993). These twelve claimants have simply not raised an issue of fact as to whether

their economic losses resulted from physical damage to their proprietary interests. Accordingly, the

district court erred in denying Appellants’ motions for partial summary judgment.

2. Claimants alleging physical damage

        As noted above, Mason and Advanced Materials claim to have suffered physical damage.

Mason claims it lost eighty-eight boxes of dressed crabs that spoiled in a freezer when law

enforcement officials shut off the electricity during the evacuation. Advanced Materials claims that

two manufacturing runs had to be prematurely terminated and the company lost the materials in those

runs and could not sell the products. The district court concluded that Mason’s and Advanced

Materials’s damages met the physical damage requirement of TESTBANK. Appellants argue that even

if Mason and Advanced Materials suffered damage, the damage was not directly caused by the allision

and was unforeseeable. Accordingly, they contend the district court erred in denying their motions

for summary judgment as to these claims as well. Mason and Advanced Materials argue that their


                                                     11
damages were foreseeable and that foreseeability should not be determined on a motion for summary

judgment.

       Contraryto the district court’s conclusion, neither of these claimants suffered physical damage

as a result of the allision. Mason’s crabs spoiled because the electricity was turned off during the

evacuation, not because of contact with the barge, the bridge, or the gaseous cargo. Likewise,

Advanced Materials claims losses from its inability to sell products that were in the process of being

manufactured; it is not claiming that its property was damaged as a direct result of the allision.

Claimants’ reliance on Consolidated Aluminum Corp. v. C.F. Bean Corp. (Consolidated I), 772 F.2d

1217 (5th Cir. 1985) is misplaced. There, a dredge struck and ruptured a pipeline, which caused a

reduction in gas pressure and supply to Consolidated’s power plant. We held that TESTBANK did

not bar recovery because Consolidated suffered physical damage to its equipment. Id. at 1222. Unlike

the circumstances presented in Consolidated I, here, the allision did not physically cause the

disruption in electrical power nor did it physically impact Advanced Materials’s facilities.

Accordingly, Advanced Materials and Morton have not raised a genuine issue of material fact as to

whether they suffered physical damage to a proprietary interest as a result of the allision.

       Moreover, even if we were to conclude that Mason’s and Advanced Materials’s inability to

sell their products qualified as physical damage for purposes of TESTBANK, they would not be

entitled to recover because their damages were not foreseeable. In Consolidated Aluminum Corp.

v. C.F. Bean Corp. (Consolidated II), 833 F.2d 65, 68 (5th Cir. 1988), we stated:

       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 intervention.



                                                 12
We reasoned that injury to property and persons from the escaping gas or from a fire were examples

of foreseeable consequences of negligent dredging. Id. Therefore, we concluded that, even though

Consolidated suffered physical damage, the physical damage was unforeseeable. Id. In the instant

case, as in Consolidated II, the foreseeable harms as a result of escaping gas would likely be damage

to property and people from the gas or from a fire. Further, in the case at bar, the connection between

the loss of electricity and the allision is even more remote than that between the reduction in gas

supply and the negligence in Consolidated II. In Consolidated II, the negligent dredging damaged

a gas pipeline which disrupted the flow of gas to electric turbines causing them to shut down. Here,

the barge allided with a bridge, causing the release of gas, which resulted in a mandatory evacuation

during which the law enforcement officials turned off the electricity. The spoiling of Mason’s crabs

and the premature shut down of Advanced Materials’s manufacturing run due to the evacuation and

loss of electricity were simply not foreseeable results of the release of the gaseous cargo.

Accordingly, the district court erred in denying Appellants’ motion for partial summary judgment as

to the claims of Mason and Advanced Materials.

                             IV. CLAIMS PURSUANT TO CERCLA

       CERCLA provides a remedy to a claimant seeking to recover response costs for removal and

remediation of hazardous substances released into the environment. 42 U.S.C. §§ 9601-9675. To

establish a prima facie case of liability under CERCLA, a plaintiff must prove: (1) that the site in

question is a “facility” as defined in § 9601(9); (2) that the defendant is a responsible person under

§ 9607(a); (3) that a release or threatened release of a hazardous substance has occurred; and (4) that

the release or threatened release has caused the plaintiff to incur response costs. Amoco Oil Co. v.

Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989). “In enacting CERCLA, Congress intended ‘to


                                                  13
facilitate the prompt cleanup of hazardous waste sites and to shift the cost of environmental response

from the taxpayers to the parties who benefitted from the wastes that caused the harm.’” Burlington

N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 364 (5th Cir. 2005) (quoting OHM

Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1578 (5th Cir. 1997).

       The district court concluded that the CERCLA claims were not ripe for summary judgment

because the claims raised genuine issues of material fact and were outside the scope of discovery.

Appellants assert that private causes of action under CERCLA are limited to response costs and that

Claimants did not incur any response costs recognized by CERCLA because they did not act to

remove contamination or remedy the direct effect of contamination. Claimants argue CERCLA

confers a private right of action on any person who has incurred the necessary costs of response

consistent with the national contingency plan. They argue the evacuation was ordered by the State

Police and the Sheriffs of two parishes and that the evacuation was related to the clean up activities.

       Claimants have not raised a genuine issue of material fact as to whether they are entitled to

recover under CERCLA. “To justifiably incur response costs, one necessarily must have acted to

contain a release threatening the public health or the environment.” Amoco Oil, 889 F.2d at 669-70.

The claims at issue here are for economic losses resulting from the evacuation. None of the claimants

has even alleged that it incurred costs in acting to contain the gaseous cargo; therefore, none of the

claimants is entitled to recover under CERCLA. The district court erred in denying Appellants’

motions for partial summary judgment as to the claims brought pursuant to CERCLA.

                                V. CLAIMS PURSUANT TO OPA

       OPA provides that “[n]otwithstanding any other provision of law . . . each responsible party

for a vessel or a facility from which oil is discharged . . . into or upon the navigable waters or


                                                  14
adjoining shorelines . . . is liable for the removal costs and damages specified in subsection (b) of this

section that result from such incident.” 33 U.S.C. § 2702(a). Section 2702(b)(2)(B) allows recovery

of “[d]amages for injury to, or economic losses resulting from destruction of real or personal

property, which shall be recoverable by a claimant who owns or leases that property.” Section

2702(b)(2)(E) provides recovery of “[d]amages equal to the loss of profits or impairment of earning

capacity due to the injury, destruction, or loss of real property, personal property or natural

resources, which shall be recoverable by any claimant.”

        The district court concluded that the OPA claims were not ripe for summary judgment

because the claims raised genuine issues of material fact and were outside the scope of discovery.

Appellants argue that OPA is inapplicable. Further, they contend that if OPA were applicable,

Claimants could not recover because they have sustained no physical damage to their property and

their economic damages were not the direct result of property damaged by an OPA event. Claimants

respond that OPA is applicable because the gaseous cargo was a propylene/propane mix and that

OPA does not require that the injury result from direct contact with a hazardous substance.

        In order to recover under § 2702(b)(2)(B) a plaintiff must show that her property was

damaged as a result of a release or threatened release of oil. Claimants have not raised an issue of fact

as to whether the gaseous cargo caused damage to their property; accordingly, they are not entitled

to recover under § 2702(b)(2)(B). This, however, does not end our inquiry because § 2702(b)(2)(E)

allows a plaintiff to recover for economic losses resulting from damage to another’s property. See

Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 631 (1st Cir.1994) (“The House Conference

Report makes clear that, under section 2702(b)(2)(E), ‘[t]he claimant need not be the owner of the

damaged property or resources to recover for lost profits or income.’” (alteration in original) (citing


                                                   15
H.R. Conf. Rep. No. 101-653, 101st Cong., 2d Sess. 103 (1990), U.S. Code Cong. & Admin. News

1990, p. 722.)). Contra In re Cleveland Tankers, Inc., 791 F. Supp. 669, 678-79 (E.D. Mich. 1992),

(interpreting subsection (E) to require that the injury be to the claimant’s property). Accordingly, we

must decide whether Claimants’ damages are recoverable under § 2702(b)(2)(E). Appellants contend

that Claimants may not recover because the property damage was not caused by the gaseous cargo.

Because we have not yet had occasion to consider this issue, we find the decision of the Fourth

Circuit in Gatlin Oil Co. v. United States, 169 F.3d 207 (4th Cir. 1999), instructive.

        In Gatlin Oil, vandals opened some of Gatlin Oil’s above-ground fuel storage tanks causing

an oil spill. Vapors from the oil ignited a fire that destroyed a warehouse, plant, inventory and other

property. In order to prevent further discharge of oil, federal officials instructed Gatlin Oil to remove

oil from storm ditches and surface waters and to take other preventative measures. Gatlin Oil

presented a claim to the Oil Spill Liability Trust Fund for payment of uncompensated removal costs

and damages, claiming damages resulting from the discharge of oil and the ensuing fire. The Coast

Guard determined that Gatlin Oil’s damages were limited to those caused by the discharge and the

measures ordered by the federal officials to prevent discharge. The court held that as a matter of law

Gatlin Oil could not recover compensation for fire damage because the evidence did not establish that

the fire caused the discharge of oil into navigable waters or posed a threat to do so, as required by

section 2702(a). Gatlin Oil, 169 F.3d at 212.

        Claimants argue that Gatlin Oil is inapplicable because it involved a claim for recovery from

the Oil Spill Liability Trust Fund, not a responsible party; however, the Fourth Circuit noted, “[t]he

principal dispute between Gatlin and the Coast guard pertains to the damages that are compensable

within the meaning of section 2702,” id. at 210. Indeed, the court stated, “We hold that the removal


                                                   16
costs and damages specified in section 2702(b) are those that result from a discharge of oil or from

a substantial threat of a discharge of oil into navigable waters or the adjacent shoreline.” Id. at 211.

We agree. Even assuming arguendo that OPA applies, none of the claimants has raised an issue of

fact as to whether any property damage was caused by the pollution incident, i.e., the release of the

gaseous cargo. A party is liable under OPA if, inter alia, the claimant’s damages “result from such

incident,” i.e., the discharge or threatened discharge of oil. See 33 U.S.C. § 2702(a) (emphasis

added); Gatlin Oil, 169 F.3d at 210-11 (“The Coast Guard has interpreted the Act to provide that

only removal costs and damages that ‘result from such incident’ are compensible [sic].” (emphasis

in original) (citing § 2702(a))). Any property damage upon which Claimants must rely to recover

under § 2702(b)(2)(E) did not result from the discharge or threatened discharge of oil. Claimants

have not raised an issue of fact as to whether their economic losses are due to damage to property

resulting from the discharge of the gas. Therefore, Claimants cannot recover under OPA and the

district court erred in denying Appellants’ motions for partial summary judgment.

                                         VI. CONCLUSION

        For the foregoing reasons we REVERSE the district court’s denial of Appellants’ motions

for partial summary judgment.




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