According to a opinion issued earlier today by the Fifth Circuit Court of Appeals – two years after a tragic single-boat accident, one of the boat’s occupants, John Andrew Newbold, succumbed to his injuries. The boat had struck a submerged warning sign during the accident, and the estate and survivors of the deceased sued the companies responsible for the sign. The district court granted summary judgment to the defendants, Kinder Morgan, a Houston Company and Southern Natural Gas Company, on the grounds that the incident occurred on water governed by Louisiana law rather than federal law.
The crux of the appeal in case No. 22-30416 was whether the allision occurred in “navigable” waters, which would make federal law applicable. However, the court upheld the district court’s decision, ruling that the allision took place in non-navigable waters, and thus Louisiana law applies.
The accident occurred on April 16, 2020, when John Andrew Newbold and his nephew, Jason Rodgers, went fishing in the D’Arbonne Wildlife Refuge. While returning to the boat launch, they noticed a clear channel of water and decided to try fishing there. Rodgers accelerated the boat, which then struck a submerged object. Newbold was ejected from the boat and hit his head on the propeller, sustaining two large gashes on the left side of his head. He later died as a result of these injuries.
It was later determined that the clear swath of water was atop a right-of-way granted to the Southern Natural Gas Company for two natural gas pipelines, which are operated by Kinder Morgan. The pipelines cross Bayou D’Arbonne, and the rights-of-way are regularly maintained. The submerged object the boat struck is believed to have been a warning sign for boaters not to anchor or dredge above the pipeline. At the time of the allision, the sign was approximately 15 feet high. According to the defendants’ expert report, seasonal flooding has submerged the sign roughly seven percent of the time over the past 30 years.
