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Norfolk Dredging Company Protests Court Decision

Norfolk Dredging Company, Inc. located in Chesapeake, Virginia, filed a protest against the Corps of Engineers award of a non-hopper dredging contract to Bean Stuyvesant, LLC, on a project located in Morehead City, North Carolina. On October 14, 2003, the U.S. Court of Federal Claims ruled in Norfolk's favor and held that the Oceans Act of 1992 only permitted Bean Stuyvesant to utilize non-hopper dredges on a project that also involved the use of the hopper dredge Stuyvesant, or any other hopper dredge chartered to Bean Stuyvesant and documented before 1992.

The United States, acting on behalf of the Corps of Engineers, and Bean Stuyvesant, LLC appealed to the U.S. Court of Appeals for the Federal Circuit and, by a decision issued on July 7, 2004, the appellate court reversed the decision of the Court of Federal Claims. The Court of Appeals held that the plain meaning of the Oceans Act was that the foreign-owned Stuyvesant Dredging Company, or any entity in which it has an ownership interest, including Bean Stuyvesant, LLC, could charter non-hopper dredges for use on any dredging project, without limitation.

It is the view of Norfolk Dredging Company that the Court's decision is a manifest error of law because it disregards long-standing decisions of the U.S. Supreme Court imposing specific rules of statutory construction. These rules require a statute to be read as a whole, according to the overall purpose of Congress in enacting the statute, given meaning to all of the words, and not treating any words as mere surplusage. The Court of Appeals overlooked the fact that Congress intended to prohibit all foreign-owned companies from chartering vessels to perform work in waters of the United States, with very limited exceptions.

It simply makes no sense for the Court of Appeals to conclude that Congress enacted a statute broadly prohibiting foreign dredging while, at the same time, allowing a single foreign company the unlimited right to participate in the American non-hopper dredging market and to effectively license any other foreign company to do so, as well. In our view, the Court’s mechanistic and overly simplistic analysis of the statute amounted to the sort of error that requires a review by the full court.

Norfolk Dredging Company intends to pursue all legal remedies available to it in order to seek to have this incorrect decision overturned, and a Petition for Rehearing En Banc was filed on July 21, 2004.

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