Legal Blog

Louisiana Maritime Defense: DOTD Not Immune for Mississippi Ferry Allision

Written by Kristin Lausten

A recent case from the Louisiana Court of Appeals confirmed that the State, in particular, the Department of Transportation and Development, was not immune from suit under La. R.S. 9:2798.1 for a ferry allision that injured several passengers. See Populis v. State, Dept. of Transportation, 2016-655, 222 So. 3d 975 (La. App. 5 Cir. 2017). The case also affirmed the standard rules for determining negligence liability for maritime accidents in New Orleans and the rest of Louisiana.

Louisiana Maritime Defense: General Legal Principles of Maritime Negligence

Accidents that cause injury on Louisiana waterways are governed by the laws of negligence. The elements of a maritime negligence cause of action are the same as land-based negligence. The victim or injured party must demonstrate:

  • That the defendant owed the victim a duty
  • That the defendant breached that duty
  • That the victim sustained injury
  • That a causal connection exists between the defendant’s conduct and victim’s injury and
  • That the resultant harm must be reasonably foreseeable

See Dunaway v. Louisiana Wildlife & Fisheries Comm’n, 2008-1494, 6 So.3d. 228 (La. App. 1 Cir. 2009). The main difference between land-based negligence and maritime negligence is in the final element – “duty/risk analysis is applied for the former, a “reasonably foreseeable” analysis for the latter. For maritime accidents, the Federal Inland Navigation Rules are the “rules of the road” for proper navigation codifying negligence principles for specific circumstances of waterway navigation – narrow channels, for example – but for more general standards of reasonable exercise of due care. See Ledet, v. Parker Drilling Offshore USA, LLC, 2016 CA 1339 (La. App. 1 Cir. April 12, 2017).

Louisiana Maritime Defense: General Legal Principles of State Immunity Under La. R.S. 9:2798.1

The Louisiana Department of Transportation and Development operates various ferries and other watercraft throughout the state. In the Populis case, the relevant watercraft was a Mississippi river ferry crossing between Edgard, Louisiana and Reserve, Louisiana. The ferry carried both passengers and cars. On March 20, 2013, early in the morning before sunrise, there was an allision whereby the ferry captain allided with a moored barge. As a result, various passengers were injured and they eventually sued to recover for their injuries.

Aside from defending on the main charge of negligence, the ferry captain and the DOTD defended on the grounds of discretionary immunity under La. R.S. 9:2798.1. In general, La. R.S. 9:2798.1 provides tort immunity if a governmental department or subdivision or agency is undertaking a discretionary action and if that action involves policy decisions, or decisions based on social, economic, or political concerns.

Essentially, the courts use a two-step test. First, the courts determine whether the government action was undertaken pursuant to a requirement of a statute, regulation, or policy. If yes, then there is no discretion, and the immunity of La. R.S. 9:2798.1 does not apply. Second, if the action was discretionary, then the courts look to whether action was at the “operational level” or at the policy-making level. The immunity statute does not protect Louisiana governmental entities against legal fault or negligent conduct at the “operational level” — only for decisions based on social, economic, or political concerns.

Louisiana Maritime Law: Application of Principles to Populis

As applied the Populis case, the court held that the immunity statute did not apply. Captaining a ferry is an operational-level task, even if the captain was required to use his discretion in making navigational decisions. Such were not at the level of social, economic, or political.

On the facts of the case, the court of appeals also upheld the trial verdict that the captain and the DOTD was negligent for the allision. Essentially, the captain failed to keep a good lookout.

Louisiana Maritime Defense: Contact New Orleans Attorney Kristin M. Lausten

If you need additional information, contact Louisiana defense attorney Kristin M. Lausten. Ms. Lausten has experience in maritime law and defends complex tort litigation in both state and federal courts. She can be contacted at 504.377.6585 or via email at

The author may be contacted at:

Kristin M. Lausten

New Orleans, Louisiana
Telephone: 504.377.6585


This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.