Can Commercial Fishermen be Allowed to Recover Against the Polluter Where Collision of Ships and the Resulting Discharge of Toxic Chemical Leads to Loss of Business ?
Some courts have also allowed commercial fishermen to recover against the polluter when both the activities and the alleged injuries occurred on water.
In Louisiana ex rel. Guste v. the M/V Testbank, 524 F. Supp. 1170 (E.D. La. 1981), two ships collided which resulted in pollution of the waters by chemical cargo. See 524 F. Supp. at 1171.
Because of the possibility that aquatic life was contaminated by the chemical, the United States Coast Guard temporarily closed a substantial number of square miles of Louisiana waterways and marshes to commercial fishermen, crabbers, oystermen, and shrimpers. See id.
The commercial fishermen and other parties who used certain waters for business or recreation asserted various theories of liability, including maritime tort, and private causes of action pursuant to federal statute, the laws of the State of Louisiana, and the laws of the United States. See id.
The defendants sought summary judgment on all claims for alleged economic loss, contending that the damages for which plaintiffs sought recovery were consequential results of the ships colliding in which no actual physical damage occurred.
Therefore, defendants argued that the plaintiffs could not recover for mere business expectations or losses sustained solely from the negligent interference with contractual relations. See id.
The federal district court disagreed, holding that the collision of the ships and the resulting discharge of the toxic chemical "constituted a tortious invasion that interfered with the special interest of the commercial fishermen, crabbers, shrimpers and oystermen to use those public waters to earn their livelihood and the specific pecuniary losses which can be shown to have been incurred should be recoverable." Id. at 1174.
The court reasoned that the fisherman were exercising their public right to make a commercial use of those waters. See id. (citing Burgess, 370 F. Supp. 247); see also Pruitt, 523 F. Supp. at 978 (noting that commercial fishermen were entitled to compensation for any loss of profits they could prove were caused by defendant's negligence because the entitlements presumably arose from a constructive property interest in Chesapeake Bay's harvestable species and the professional fishermen were entitled to recover despite the lack of any direct physical damage to their own property).