Case 143

USS Cabot CVL 28 Assn., Inc. v. Josiah, 1998 WL 315387 (E.D. La. 1998), Docket No. CIV. A. 98-0154.

Plaintiff, USS Cabot CVL 28 Association, Inc., an association of primarily U.S. Navy veterans who served on the USS Cabot, sought a preliminary injunction 1) ordering the Commander of the Eighth Coast Guard District to require that a Dead Ship Tow Plan be submitted to plaintiff prior to any movement of the ex-Navy aircraft carrier USS Cabot, a National Historic Landmark, and 2) prohibiting the Commander from approving any Dead Ship Tow Plan for the Cabot unless and until he has complied with the provisions of the National Historic Preservation Act (NHPA).

Following its war days, the Cabot was transferred to Spain and then back to the U.S. to one of the defendants, the USS Cabot/Dedalo Foundation, Inc., a non-profit corporation, for the purposes of converting the vessel into a museum. The ship was docked in New Orleans and then moved to Violet, Louisiana. The ship was then transferred to another one of the defendants, Global Maritime Group, LLC. The foundation entered into an agreement with Global to scrap the Cabot. The Cabot was then moved to Port Isabel, Texas.

Plaintiff then filed this lawsuit because the Foundation/Global joint venture planned to move the Cabot from Port Isabel to Brownsville where it would be scrapped. Plaintiff made it clear that its interest was to prevent the scrapping of the Cabot and that it had no particular interest in any movement of the vessel, except to the extent it would result in the vessel's demolition. Plaintiff contended that the approval of an additional Dead Ship Tow Plan by the U.S. Coast Guard, which has extensive regulatory authority, is an "undertaking" under NHPA.

The court found several serious questions in regards to the merits of plaintiff's case. As a preliminary matter, the court stated that plaintiff had not shown that, under the circumstances, the regulations required the Coast Guard to control any further movement of the Cabot. Any decisions on further vessel movement were left to the discretion of the District Commander and the Commander of the Port (COTP). Further, plaintiff was unable to show that conditions mandating action by the COTP currently existed. There was also a serious question as to whether the movement of the Cabot from Port Isabel to Brownsville would constitute an "undertaking" under NHPA.

However, the court refused to rule on this issue and decided to deny the petition for a preliminary injunction on the issue of harm to the public interest. After assuming that plaintiff had demonstrated irreparable harm, the court concluded that the potential harm to plaintiff if the injunction did issue (i.e., moving the vessel and scrapping it) did not outweigh the potential hardship to Global and the foundation if the injunction were granted (i.e., losing the vessel through capsizing or sinking in a storm due to its present location).

The court further found that the issuance of the preliminary injunction would not be in the public interest. While acknowledging that there is a public interest in the preservation of National Historic Landmarks such as the Cabot, the court stated that the interest of public safety posed by the current location and size of the Cabot was more important. In its current location, the Cabot posed a threat to Port Isabel in the event of a tropical storm, exposing the community to a risk of loss of life and damage to facilities and the environment.

Since plaintiff could not show that the requested preliminary injunction would not undermine the public interest, it failed to establish another of the necessary prerequisites to the issuance of a preliminary injunction, and the court denied the request.
In order to be granted a preliminary injunction, the movant must demonstrate by a clear showing that 1) there is a substantial likelihood of success on the merits; 2) there is a substantial threat of irreparable harm if the injunction is not granted; 3) the threatened injury outweighs any harm that may result from the injunction to the non-movant; and 4) the injunction will not undermine the public interest. Bypassing the first issue, and assuming the second issue in favor of plaintiff, the court found against plaintiff regarding the third and fourth issues. The petition was, therefore, denied.

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