Burgess v. M/V Tamano - 370 F. Supp. 247 (D. Me. 1973)

Rule:

Pecuniary loss to the plaintiff will be regarded as different in kind where the plaintiff has an established business making a commercial use of the public right with which the defendant interferes. 

Facts:

An oil tanker struck a rock outcropping and discharged oil into a bay along the coast of Maine. Plaintiff commercial fishermen and clam diggers, and plaintiff coastal businesses filed suit for pecuniary loss, alleging negligence, trespass, and nuisance. Variously named as defendants or third-party defendants are the TAMANO, her owners, her captain, her pilot and the local pilots' association, her charterer, Texaco, Inc., the State of Maine, and the United States of America. Liability is asserted on theories of negligence, unseaworthiness, trespass and nuisance, as well as under Section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407, and Section 11(b) (2) of the Water Quality Improvement Act of 1970, 33 U.S.C. § 1161(b) (2). The admiralty and maritime jurisdiction of the federal courts is invoked pursuant to 28 U.S.C. § 1333(1) and 46 U.S.C. § 740. Defendants moved for dismissal. 

Issue:

Were the economic interests (loss of profits and impairment of earning capacity) which the plaintiffs assert to have been damaged by the oil spill legally cognizable?

Answer:

Yes

Conclusion:

The court denied dismissal of the claims of the fishermen and clam diggers, holding that they could maintain a private action for a tortious invasion of a public right because the loss they suffered was different in kind from the loss suffered by the general public as they made commercial use of the public right. It granted dismissal of the claims brought by coastal businesses except those who owned property physically injured by the spill, because the injury of which they complained, the loss of customers, was derivative from that of the public at large and was common to all businesses and residents of the area.