Petition — Boyd v. United States

IN THE SUPREME aa, As = YR? STATES

=! Me

a

OCTOBER TERM, 1974

DOYLE A. BOYD and

H. W. CALDWELL & SON, INC.

Petitioners

v.

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

for the Sixth Circuit

STANLEY H. SIDICANE

330 StahIman Bldg.

Nashville, Tn. 37201

H. FRED FORD

325 Plus Park Blvd.

Nashville, Tn. 37217

Counsel for Petitioners

TABLE OF CONTENTS

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APPENDIX (Attached)

United States’ Amended Complaint—Appendix I ........

Memorandum of the United States District Court

for the Middle District of Tennessee—Appendix II

Opinion of the Sixth Circuit Court of Appeals

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IN THE SUPREME COURT OF THE UNITED STATES

No.

OCTOBER TERM, 1974

DOYLE A. BOYD and

H. W. CALDWELL & SON, INC. .

Petitioners

v.

UNITED STATES OF AMERICA

Petitioners that a writ certiorari issue to the United

States Court of Appeals for the Sixth Circuit to review a judgment

of that court entered on June 18, 1975 in the above case.

OPINIONS DELIVERED IN COURTS BELOW

The opinion of the Court of Appeals is unreported and is

printed as Appendix II hereto.

The decision of the United States District Court for the Middle

er eee ee

to.

JURISDICTION

The judgment of the Court of Appeals was entered on June 18,

1975.

Jurisdiction to review the decision of the United States Court of

for the Sixth Circuit is conferred on this Court under

Title 28 U.S.C. Sec. 1254.

The portion of that section pertinent to the jurisdiction in this

review provides as follows:

2

“Cases in the Courts of Appeals may be reviewed by the

following methods:

1. By writ of certiorari granted upon the petition of any party

to any civil or criminal case before or after retention of

judgment or decree.”

QUESTIONS PRESENTED FOR REVIEW

1. Is the United States Exempt from any Statutes of Limitation in

wreck removal cases under admiralty law?

STATUTES INVOLVED

28 U.S.C. §2415, 28 U.S.C. §2416

STATEMENT OF THE CASE

Sometime prior to July, 1966 and probably earlier, the barge

©B-482 sank in the Cumberland River, near Nashville. The barge

was purchased by H. W. Caldwell & Son, Inc. and entrusted to

the defendant Doyle Boyd for safekeeping.

Thereafter during periodic surveys and barge inspections

made by the Corps of Engineers, the sunken barge was noted.

The Corps allowed the barge to remain untouched for several

years and beginning in 1969, the Corps began corresponding with

one of the defendants, Doyle Boyd, asking his intentions about

removing it.

Since Boyd did not take any action to remove the sunken barge,

the Corps advised him, on July 7, 1970, to take no further action

concerning it. Thereafter the Corps paid Gerard Construction

Company to remove it, such removal being completed on or

about May 21, 1971, some six years after its sinking.

On December 18, 1972, an action in the Unid States District

Court was brought against defendant Doyle A. Boyd to recover

the monies expended by the government. Thereafter, on April

16, 1973 the action was amended to add H. W. Caldwell & Son,

Inc. as an additional defendant. The bringing of both actions

occurred over 7 years after the barge had sunk. A copy of the

amended complaint is appended hereto as Appendix I.

On February 4, 1974, the District Court entered a decision

holding the defendants jointly and severally liable to the United

States of America in the amount of $14,046.00 plus costs, and

interest from June 21, 1971. The decision stated that defendants’

plea of Statute of Limitations was inapplicable stating that the

3

Statute of Limitations began to run not when the United States

became responsible for the removal of the barge 30 days after its

sinking, but on the day the government ascertained the amount it

expended to salvage the barge six years later. A copy of the

District Court's decision is appended hereto as Appendix II.

Petitioners filed a timely appeal to the United States District

Court of Appeals for the Sixth Circuit, which affirmed the action

of the District Court, stating in part that the right to restitution

did not accrue until piiaeebecnendatiinesetentian ” The

Court stated further that since the action was brought within two

years of such ascertainment of the amount of the salvage costs, the

right to restitution would not be barred by either the three year or

the six year Statute of Limitations. A copy of the Sixth Circuit

Court of Appeals’ decision is appended hereto as Appendix III

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals in holding that the Statute

of Limitations did not run until the wreck had been removed

involves an important question of Federal Law, which has not

been, but should be, settled by this Court.

The decision of the Court of in this case conflicts with

virtually every decision ever by the Supreme Court of

the United States and each and every District Court and Court of

Appeals in that the law is well settled that the Statute of Limita-

weenie os Satna te cay tere ber sedi

should have discovered his cause of action

not when the amount of damage is ascertained. In this case it is

admitted that the Government knew of the sinking of the barge

but did nothing for six years.

ARGUMENT

This case presents a unique question of law which has not been

previously decided by this Court. That question involves a

determination as to the time the Statute of Limitations begins to

run in wreck removal cases of admiralty.

Since the enactment of Statute of Limitation against the United

States Government (28 U.S.C. 2415, 28 U.S.C. 2416), the law has

been almost uniform as to the time the statute begins to run.

Never before has a decision been rendered by any Court allowing

the government, or an ye |< ple ——

renateg it the tne of

Under admiralty decisions, 8 = lO

4

established 30 days after the sinking of a vessel. Jones Towing,

Inc. vs. United States, 277 Fed. Supp. 839 (USDC La. 1967).

The Corps of Enginéers, through the Secretary of the Army,

has a duty following that thirty day period to light and mark a

sunken vessel, or to remove it uader the Rivers and Harbors Act

33 U.S.C. §409. Since the record in this cause establishes that the

barge sank prior to July of 1966 and that the action against the

defendants was not commenced until over 7 years later, it is clear

that whether the three or six year statutes of limitation are appli-

cable the action was barred as having been brought too late.

Although the wording in the Statutes of Limitation “after the

right of action first accrues” has been interpreted numerous times

to establish that “accrues” refers to the time after claimant dis-

covered, or in the exercise of reasonable diligence, should have

discovered its cause of action. both the district Court and the

Court of Appeals for the Sixth Circuit ignored all existing law in

upholding the right of the Government to bring the action ini-

tially at any time it chose, stating in essence that the Statutes of

Limitation began running at the time it ascertained the exact

amount of its damage. This is tantamount to allowing the

Government to begin the running of the statute at will, since if it

had waited twenty-five years to remove the barge instead of a

mere seven, the statute would not begin to run until the time of

the ascertainment of damage and removal twenty-five years

later.

In summary, to uphold the decision of the Court of Appeals in

allowing the United States to begin the running of the Statute of

Limitation at its will is to open up a Pandora's box upon the legal

world. This Court, as the Court of last resort, must prevent this

decision from standing and eroding all existing law as it applies to

the time the Statute of Limitations begins running in actions at

law.

For all the reasons set out in the foregoing argument, the

petition for a writ of certiorari should be granted.

Respectfully submitted,

STANLEY H. SIDICANE

330 Stahlman Bidg.

Nashville, Tenn. 37201

H. FRED FORD

325 Plus Park Blvd.

Nashville, Tenn. 37217

Counsel for Petitioners

i

5

APPENDIX! .

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

UNITED STATES OF AMERICA

Plaintiff

Vs. CIVIL ACTION NO. 6819

DOYLE A. BOYD, and

H.W. CALDWELL & SON, INC.,

Defendants

AMENDED COMPLAINT OF USA

l. This is a wreck removal case of admiralty and maritime

jurisdiction as hereinafter more fully appears, and is an

and maritime claim within the meaning of Rule 9(h) of the Federal

Rules of Civil Procedure.

2. Plaintiff is the United States of America, a sovereign nation,

which may bring this action pursuant to the original jurisdiction

conferred upon this Court by 28 U.S.C. 1345.

3. Defendant Doyle A. Boyd is a resident of Nashville,

Tennessee, residing at 3004 Lebanon Road, Nashville, Tennes-

see.

4. Defendant H. W. Caldwell & Son, Inc., is a corporation

organized and existing pursuant to the laws of Tennessee, and

listing as its agent for service of pr »cess Joseph A. Caldwell, 906

Freywood Drive, Madison, Tennessee 37115.

5. At all times pertinent herein, defendants Doyle A. Boyd and

H. W. Caldwell & Son, Inc., were the owners and operators of

the Barge CB-482.

6. Plaintiff United States of America in its sovereign capacity

and according to the legislative direction of Congress maintains,

sactesn RRC RNEROR NS 90 Gee =anet SS PmEE e eters et

the United States, among which is the (Cumberland River

7. On or about December 5, 1968, plaintiff United States of

America through its Army Corps of Engineers was notified of a

sunken barge owned by defendant Doyle A. Boyd lying partially

6

submerged in the navigable waters of the Cumberland River at

Mile 192.1, near Nashville, Tennessee.

8. As owners of a sunken barge in a navigable channel, defend-

ants Doyle A. Boyd and H. W. Caldwell & U.S.C. 409, were asked

to commence the immediate removal thereof and — to

prosecute such removal. On December 5, 1968, on Fe 7,

1969, and on June 12, 1969, plaintiff United States of America

through its Army Corps of Engineers made formal demand upon

defendant Doyle A. Boyd to remove the sunken barge.

9. Failure of the owner of a sunken vessel to remove her

subjects the vessel to removal and disposal by the United States as

an obstruction to navigation. On April 15, 1970, plaintiff United

States of America through its Army Corps of Engineers made

formal demand upon defendant Doyle A. Boyd to remove the

sunken barge, giving notice that should Doyle A. Boyd fail to do

so within i5 days after receipt thereof, the United States would

undertake removal operations, reserving all rights to recover any

and all costs and expenses incurred in said removal operations.

10. Upon the failure of defendant Doyle A. Boyd to comply

with said demand, plaintiff United States of America through its

Army Corps of Engineers advertised for bids for the removal and

disposal of the obstruction to navigation caused by defendants’

sunken barge. The contract was awarded to Gerard Construction,

Inc., the lowest responsible bidder, and all work was satisfactorily

completed on or about April, 1971, at a total cost to plaintiff

United States of America of $15,126.12. Defendants Doyle A.

Boyd and H. W. Caldwell and Son, Inc., have not made restitu-

tion of or reimbursement for this sum spent on their behalf and for

their account despite due demand therefor and the said sum of

$15, 126.12 is still due and owing to plaintiff United States of

America.

FIRST CAUSE OF ACTION

11. By reason of the foregoing matters, defendants Doyle A.

Boyd and H. W. Caldwell & Son, Inc., have been unjustly

enriched by reason of the United States assuming their statutory

duty and defendants Doyle A. Boyd and H. W. Caldwell & Son,

Inc., are therefore obligated to reimburse, indemnify and make

restitution to plaintiff United States of America in the amount of

$15,126.12, plus proper interest and costs.

7

SECOND CAUSE OF ACTION

As and for a second, separate and distinct cause of action against

defendants Doyle A. Boyd and H. W. Caldwell & Son, Inc.,

plaintiff alleges and incorporates by reference the matter con-

tained in 1 through 10, as if specifically set forth

herein, and, in tien thereto, further alleges:

12. By reason of the foregoing matters, defendants Doyle A.

Boyd and H. W. Caldwell & Son, Inc., voluntarily and carelessly

and negligently caused and permitted the barge to be sunk, and

through their fault and neglect and the unseaworthiness of the

said barge created an unlawful obstruction to the navigable capac-

ity of the Cumberland River and a danger and menace to the

navigation thereof, thereby causing damages to plaintiff United

States of America in the amount of $15,126.12, plus proper

interest and costs.

THIRD CAUSE OF ACTION

As and for a third separate and distinct cause of action against

defendants Doyle A. Boyd and H. W. Caldwell & Son, Inc.,

plaintiff alleges and incorporates by reference the matter con-

tained in paragraphs 1 through 10 as if specifically set forth

herein, and, in addition thereto, further alleges:

13. By reason of the foregoing matter, defendants Doyle A.

Boyd and H. W. Caldwell & Son, Inc., created and maintained an

unlawful obstruction to the navigable capacity of the Cumberland

River and a danger and menace to the navigation thereof and

public nuisance which they wrongfully failed to remove and

abate, and which was abated by the plaintiff United States of

America at an expense of $15, 126.12, for which defendants Doyle

A. Boyd and H. W. Caldwell & Son, Inc., are obli to

reimburse and indemnify and make restitution to plaintiff United

States of America in the amount of $15,126.12, plus proper

interest and costs.

WHEREFORE, plaintiff prays:

1. That process in due form of law issue against defendants

Doyle A. Boyd and H. W. Caldwell & Son, Inc., to appear and

answer the allegations of this complaint;

2. That this Court enter judgment in favor of plaintiff United

States of America against defendants Doyle A. Boyd and H. W.

Caldwell & Son, Inc., for the sum of $15,126.12 plus proper

interest and costs;

3. That this Court may grant to plaintiff United States of

America such other and further relief as may be deemed proper

in the premises.

CHARLES H. ANDERSON

United States Attorney

By: /s/ IRA E. PARKER

Assistant United States Attorney

By: /s/) PATRICK C. TURNER

Trial Lawyer

Admiralty & Shipping

Section Department oi Justice

Washington, D.C. 20530

Telephone: 202-739-3788

Attorney for Plaintiff ~

UNITED STATES OF AMERICA

9

APPENDIX Il

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

UNITED STATES OF AMERICA

Vs. CIVIL ACTION NO. 6819

DOYLE A. BOYD and

H.W. CALDWELL & SON, INC.

MEMORANDUM FILED FEB. 4, 1974

Plaintiff, the United States of America, seeks recovery of ex-

penses incurred as the result of defendants’ alleged failure to

comply with their mandatory duty under 33 U.S.C. §409 to

remove an obstruction to navigation, and the subsequent removal

and disposal of the obstruction by the Secretary of the Army

pursuant to his authority under 33 U.S.C. $414.

This is an admiralty and maritime claim under Rule 9(h) of the

Federal Rules of Civil Procedure. This court has jurisdiction of this

action under 28 U.S.C. §1345.

Defendant Doyle A. Boyd is a resident of Nashville, Tennes-

see, residing at 3004 Lebanon Road, Nashville, Tennessee. De-

fendant H. W. Caldwell & Son, Inc. is a corporation organized

and existing pursurant to the laws of the State of Tennessee.

In this action for money es brought by the United States,

the applicable limitations period is provided by either 28 U.S.C.

§2415 (a) ur (b). Section 2415(a) provides for a six-year period of

limitations in an action by the United States for money damages

founded upon any contract express or implied in law or fact.

Section 2415(b) provides a three-year limitations period in such

actions founded upon a tort. Irrespective of which limitations

period is applicable, this action is not barred. Removal and dis-

posal of the sunken vessel was commenced on April 12, 1971. The

initial complaint against defendant Boyd was filed on December

18, 1972. The amended complaint against both defendants Boyd

and H. W. Caldwell & Son, Inc. was filed on April 16, 1973. The

plaintiff United States of America did not have a right of action

against defendants for the recovery of expenses incurred as a

result of the removal of the sunken barge until the expenses had

10

actually been incurred. The removal and disposal was completed

on May 21, 1971, and paid for on June 21, 1971. The court holds

that the cause of action in this suit accrued on May 21, 1971, when

removal was completed and the tctal costs of the removal were

capable of ascertainment. Since both the complaint and amended

complaint were filed within the respective six- and three-year

periods of limitation provided in 28 U.S.C. §2415(a) and (b), the

court holds that this suit is not barred by the applicable statutory

period of limitations. See United States v. Hartford Accident &

Indemnity Company, 460 F.2d 17, 19 (9th Cir. 1972), cert. denied

409 U.S. 979 (1972).

The Cumberland River is a navigable waterway of the United

States and is navigable in interstate and foreign commerce. At

Mile 192.1, near Nashville, Tennessee, the Cumberland River is

approximately 564 feet in width. The Army Corps of Engineers

maintains a minimum channel depth of nine feet from bank to bank

at this point.

During the period of time involved in this action, 1963 through

1971, the Cumberland River at Mile 192.1 was used extensively

for navigation purposes by both commercial and recreational

vessel owners.

The sunken vessel in question, Barge CB-482, was an unregis-

tered open hopper steel barge, measuring 175 feet in length, 26

feet in width, 11 feet in height, and with a draft (unloaded) of 1.5

feet. The letters and numerals “CB-482” were painted on the

barge.

Sometime prior to 1963, H. W. Caldwell & Son, Inc. formed a

marine division and employed Doyle A. Boyd as superintendent

thereof. The arrangement between the company and Boyd pro-

vided that, in addition to a salary, Boyd would share in the net

proceeds received from liquidation of the division.

In 1963, defendant Boyd, while in the employ of defendant H.

W. Caldwell & Son, Inc. as superintendent of the marine divi-

sion, purchased the Barge CB-482 on behalf of his employer for

$515 from Steiner-Liff Iron and Metal company, Nashville,

Tennessee. The barge became an asset of the marine division of

H. W. Caldwell & Son, Inc.

After 1963 when the existing contracts of the marine division

were completed, Boyd accepted work with other employers but

with the general understanding that future contracts for the

Caldwell marine division were a possibility and that he might

return to work for Caldwell.

After defendant Boyd left the employ of defendant Caldwell,

sometime after 1963, he continued to use the barge for his own

11

purposes, though title to the barge remained in defendant H. W.,

Caldwell & Son, Inc. The barge was entrusted to Boyd with the

understanding that it would be available for use by both Boyd and

the company.

Boyd subsequently had the Barge CB-482 towed to Mile 192.1

on the Cumberland River, where he moored the port side of the

barge to the right bank of the river by attaching it by cables to

some trees. He arranged with a local marina operation to occa-

sionally pump out the barge. This pumping was necessary be-

cause rainwater would accumulate and swamp the barge regard-

less of whether the barge physically deteriorated in any way. The

barge was pumped out on several occasions in 1965 and 1966. The

Barge CB-482 sank at this location in approximately July, 1967,

and its starboard side remained submerged until the barge was

removed by the Army Corp of Engineers in 1971.

The Army Corps of Engineers first became aware of the barge’s

sunken condition in 1968. Thereafter, the District Engineer di-

rected his personnel to determine the ownership of the barge and

to request the owner to remove the barge from the river as a

hazard to navigation. A representative of the Army Corps of

Engineers thereafter interviewed an employee of the 1963 ven-

dor of the barge, Steiner-Liff, and also interviewed the operator

of the marina located near the barge. Both sources informed the

Corps of Engineers’ representative that defendant Doyle A. Boyd

was the owner of the Barge CB-482.

On December 5, 1968, the District Engineer wrote to defen-

dant Boyd and advised him of the provisions of the Rivers and

Harbors Act of 1899, 33 U.S.C. §401, et seq., with respect to

sunken vessels in navigable waters.

On four more occasions between February, 1969, and April

1970, the District Engineer wrote to defendant Boyd, demanding

that he remove the sunken barge as an obstruction and a hazard to

rravigation.

In July, 1969, personnel of the Army Corp of Engineers in-

spected the sunken barge and found a crack in the port side

running from the gunwale to a point below the waterline, and

through the inner and outer hulls of the barge. The depth of the

Cumberland River on the sunken starboard side of the barge was

sounded at 12 feet. At some time after the barge sank, it was

inspected by defendant Boyd, who noted the existence of the

crack in the barge’s port side.

In May, 1970, the Army’s District Engineer requested author-

ity from the Chief of Engineers in Washington, D.C. to remove

the barge as a hazard to navigation. The Chief of Engineers

12

granted such authority in June, 1970. In July, 1970, defendant

Boyd was notified by the District Engineer that the Army Corps

of Engineers intended to remove the barge as a hazard to naviga-

tion. Pursuant to advertisements for bids, Gerard Construction,

Incorporated, after lawful bidding procedures, was awarded a

contract by the Army Corps of Engineers for the removal and

disposal of the sunken Barge CB-482. The contract was com-

pleted on May 21, 1971. Further, as a result of the sinking, the

Army Corps of Engineers incurred expenses in the amount of

$631 for the engineering, drafting and inspection work in connec-

tion with the removal and disposal of the wreck.

The position of the wreck was next to the right bank of the

Cumberland River, and the sunken portion thereof was in 12

feet of water. The wreck was clearly within the navigable capacity

of the Cumberland River. It was in an area subject to navigation

by commercial and recreational vessels and was beyond doubt an

obstruction to the navigable waters of the United States. Over the

past few years the commercial and recreational use of the Cum-

berland River has increased substantially.

In addition to the above findings, the court hereby incorpo-

rated by reference as part of this Memorandum the Agreed

Stipulation of Facts filed by the parties on August 15, 1973.

“$409. Obstruction of navigable waters by vessels; floating tim-

ber; marking and removal of sunken vessels

“It shall not be lawful . . . to voluntarily or carelessly sink,

or permit or cause to be sunk, vessels or other craft in navigable

channels;. . . . And whenever a vessel, raft. or other craft is

wrecked and sunk in a navigable channel, accidently or

otherwise . . . it shall be the duty of the owner of such sunken

craft to commence the immediate removal of the same, and

prosecute such removal diligently, and failure to do so shall be

considered as an abandonment of such craft, and subject the

same to removal by the United States as provided for in sec-

tions 411 to 416, 418, and 502 of this title.”

Section 414 of title 33, United States Code, reads:

“$414. Removal by Secretary of the Army of sunken water craft

generally

“Whenever the navigation of any river, lake, harbor, sound,

bay, canal, or other navigable waters of the United States shall

13

be obstructed or endangered by any sunken vessel, boat, water

craft, raft, or other similar obstruction, and such obstruction

has existed for a longer period than thirty days, or whenever

the abandonment of such obstruction can be legally established

in a less space of time, the sunken vessel, boat, water craft, raft,

or other obstruction shall be subject to be broken up, removed,

sold, or otherwise disposed of by the Secretary of the Army at

his discretion, without liability for any damage to the owners of

the same: Provided, That in his discretion, the Secretary of the

Army may cause reasonable notice of such obstruction of not

less than thirty days, unless the legal abandonment of the

obstruction can be established in a less time, to be given by

publication, addressed “To whom it may concern,” in a news-

paper published nearest to the locality of the obstruction,

requiring the removal thereof: And provided also, That the

Secretary of the Army may, in his discretion, at or after the

time of giving such notice, cause sealed proposals to be sol-

icited by public advertisement, giving reasonable notice of not

less than ten days, for the removal of such obstruction as soon as

possible after the expiration of the above specified thirty days’

notice, in case it has not in the meantime been so removed,

these proposals and contracts, at his discretion, to be condi-

tioned that such vessel, boat, water craft, raft, or other obstruc-

tion, and all cargo and property contained therein, shall be-

come the property of the contractor, and the contract shall be

awarded to the bidder making the proposition most advantage-

ous to the United States: Provided, That such bidder shall give

satisfactory security to execute the work: Provided further,

That any money received from the sale of any such wreck, or

from any contractor for the removal of wrecks, under this

paragraph shall be covered into the Treasury of the United

States.”

Primary responsibility for the regulation and protection of

navigable waters falls upon the Federal Government. It is for

Congress to determine what regulations are necessary and proper

to regulate and improve navigation. United States v. Chandler-

Dunbar Water Power Co., 229 U.S. 53 (1913). Pursuant to the

power vested in it, Congress has delegated responsibility for the

regulation and protection of navigable waters to the Secretary of

the Army, 33 U.S.C. 1, and has enacted the Rivers and Harbors

Act, 33 U.S.C. §401, et seq.

The Secretary of the Army, acting pursuant to statutory author-

ity, 5 C.F.R. §301, has validly delegated to the Chief of Engi-

14

neers the authority to act on his behalf with respect to authorizing

the removal of vessels as obstruction to navigation under the

Rivers and Harbors Act of 1899. 33 C.F.R. §209.190.

The phrase “navigable channel,” as used within 33 U.S.C.

$408, is not limited to those deeper channels marked by buoys

and used by larger vessels. Red Star Towing and Transportation

Co. v. Woodburn, 18 F.2d 77 (2d Cir. 1927). A vessel may

navigate at any part of a river containing navigable waters.

American Dredging Co. v. Calmar Steamship Corp., 121 F.Supp.

255, 263 (E. D. Pa 1954), aff'd. 218 F.2d 823 (3rd Cir. 1955). Thus,

the Barge CB-482, laying in a partially submerged condition

adjacent to the bank of the Cumberland River, presented a

hazard and an obstruction to users of the river and was correctly

determined by the Army Corps of Engineers to be a hazard and

an obstruction to navigation.

The right of the United States to require the removal of a wreck

obstructing navigation, or to remove it and charge the negligent

owners or operators therefor, was firmly set forth by the United

States Supreme Court in the case of Wyandotte Transportation

Co. v. United States, 389 U.S. 191 (1967). In disagreeing with the

contention that the Government could not lawfully recover re-

moval expenses for the negligent sinking of a vessel, the Court

stated:

“. . . Petitioner's interpretation of the Rivers and Harbors Act

of 1899 would ascribe to Congress an intent at variance with the

purpose of that statute. . . . But our reading of the Act does

not lead us to the conclusion that Congress must have intended

the statutory remedies and procedures to be exclusive of all

others. . . . We therefore hold that the remedies and pro-

cedures specified by the Act for the enforcement of §15 were

not intended to be exclusive. Applying the principles of our

decision in Republic Steel, we conclude that other remedies,

including those here sought (recovery of removal costs), are

available to the Government. . . . ” 389 U.S. at 200,201.

“. ... Having properly chosen to remove such a vessel, the

Unsited States should not lose the right to place responsibility

for removal upon those who negligently sank the vessel.” 389

U.S. at 204.

The teaching of Wyandotte is that those whose negligence

caused the sinking and the obstruction of navigation are subject to

the removal costs. Certainly, it applies to those whose concurring

_

oe

15

igence served to obstruct the navigable waters and cause the

om expense. In this case, we find that defendant H. W.

Caldwell & Son, Inc., as owner, and defendant Doyle A. Boyd, as

operator, were both negligent, and that such concurring negli-

gence was the cause of the sinking of the Barge CB-482 and the

obstruction of navigable waters and are thus jointly and severally

liable for removal and disposal costs. In Re Pacific Far East Line,

Inc., 314 F.Supp. 1339, 1348, 1349 (N.D.Calif. 1970), aff d. 472

F.2d 1382 (9th Cir. 1973). Defendant Caldwell, as owner of the

barge, was negligent in that it knew, or should have know, of the

deteriorated condition of its barge and the fact that it had sunk,

but took no action to prevent the barge from sinking or from

becoming an obstruction to navigation. Defendant Boyd, as

operator of the barge, was negligent in that he knew of the

deteriorated condition of the barge and of the fact that it had sunk,

but took no action to prevent the barge from sinking or from

becoming an obstruction to navigation. Doth defendants knew or

should have known that, absent deterioration ard absent “pump-

ing out” the e would sink.

The rights of he United States in navigable waters have been

characterized as a “dominant servitude,” United States v. Com-

modore Park, 327 U.S. 386, 390, 391, (1945), and all private

property rights in the channel or stream bed are subject to it,

United States v. Kansas City Ins. Co. , 339 U.S. 799, 808 (1950).

The failure of the owner of a sunken vessel in navigable waters to

remove it therefrom is considered an abandonment of the vessel

by that owner, subjecting it to removal by the Army pursuant to

its statutory responsibility for regulation and protection of navi-

gable waters. 33 U.S.C. §409. It cannot then be said that where

an owner has failed to remove a sunken vessel which obstructs

navigation, and that vessel has been deemed abandoned by

operation of law, that the later removal of the vessel by the Army

constitutes an unlawful deprivation of the owner's property with-

out due process of law. Further, notice to the owner of a wreck of

the Army’s intention to remove it is a discretionary matter, 33

U.S.C. §414, and failure by the Army to so notify the owner is

neither arbitrary or unreasonable. Zubik v. United States, 190

F.2d 278, 281 (3rd Cir. 1951).

As to the counterclaim of H. W. Caldwell & Son, Inc. against the

United States of America for allegedly negligently and unconsti-

tutionally failing to notify the corporation of its duties and possi-

ble liability under federal law, the court holds in favor of the

United States. The counterclaimant provides no authority for the

proposition that an owner who abandons a sunken vessel in

18

United States v. Boyd Nos. 74-1493-94

owner would pump out the barge, but finally the barge sauk,

remaining submerged in the navigable portion of the river

until it was removed by the United States in 1971. The date

of the actual sinking is in dispute, District Judge Morton hav-

ing fixed it as being in July, 1967, while appellants contend

that it occurred in 1966. The actual date, for reasons which

we will state below, is not material.

The United States first became aware of the barge’s sunken

condition some time in early 1968. It then made inquiries to

determine the ownership of the barge, and both the previous

owner, who had sold the barge, and the operator of the ma-

rina near where the barge had been tied up, advised the plain-

tiff that the owner was Boyd. .

On December 5, 1968, the United States wrote to Boyd

advising him of the provisions of the Harbor and Rivers Act, 33

U.S.C. §§ 401 et seq., and especially as they pertain to vessels

which were sunken in navigable waters. Four more letters

were addressed to Boyd between February, 1969 and Ap-

ril, 1970, demanding that he remove the sunken barge, as it

was an obstruction and hazard to navigation. As late as June

3, 1970, he advised the plaintiff that he intended to move

the barge and use it as a dock. He was told to submit a

plan for removal. The record is silent as to whether he ac-

tually did.

In July, 1970, Boyd was advised that he was to take no

further action regarding the barge, and that it would be

removed and disposed of by the Government following the

submission of bids and the awarding of a contract. Bids were

submitted and the contract was awarded, and the barge re-

moved and disposed of May 21, 1971, with the contractor being

paid $13,415 on June 21, 1971. The Government also claimed

the sum of $631 for preliminary work done in connection with

the removal and disposal of the boat.

The Government filed its suit for reimbursement of its ex-

penses on December 18, 1972 against Boyd. Subsequently,

_—

19

Nos. 74-1493-94 United States v. Boyd

in 1973, Caldwell was made a party by an amended com-

plaint. District Judge Morton entered his memorandum

opinion after the trial of the action, finding that the United

States was entitled to recover the amount of $14,046, with

interest from June 21, 1971.

The first principal issue raised by the defendants was that

the action was barred by 28 U.S.C. § 2415(b) which, in sub-

stance, provides that any court actions brought by the United

States must be brought within three years after the right of

action first accrues. Judge Morton held that the right of ac-

tion did not accrue until May 21, 1971, when the total costs

of removal were first established.

We believe that the pleadings, evidence and relevant stat-

utes all must be examined, in order to determine whether the

three year statute applies, or whether the six year statute

set out in 28 U.S.C. § 2415(a), which pertains to any contract

express or implied, in law or in fact, is applicable, or whether

no statute applies.

Plaintiff's complaint alleges four causes of action. The first

is based on the theory that the defendant failed to perform

his statutory duty of removing the vessel, and that by reason

of his failure, he was unjustly enriched by reason of the United

States assuming his statutory duty and, therefore, he was obli-

gated to reimburse and make restitution to the plaintiff.

The second cause of action is grounded in negligence, and

the third cause of action is based on the theory that the ob-

struction constituted a public nuisance which the Government

had removed and was entitled to be reimbursed for its re-

moval. The fourth cause of action is not applicable to our

determination of the issue.

Title 33 U.S.C. § 409 makes it unlawful to voluntarily or

carelessly sink, or permit or cause to be sunk, vessels or other

craft in navigable channels. It then states that whenever

a vessel, raft, or other craft is wrecked and sunk in a navigable

channel, accidentally or otherwise, it shall be the duty of the

owner of such sunken craft to immediately mark it and to

20

United States v. Boyd Nos. 74-1493-94

maintain such marks until the sunken craft is removed or aban-

doned, and the neglect or failure of the owner to so mark

the craft is unlawful. The statute imposes the further duty

on the owner to commence the immediate removal of the

vessel and prosecute such removal diligently, with failure to

do so being considered as abandonment of the vessel and,

therefore, subjecting it to removal by the United States.

Title 33 U.S.C. § 414 specifically grants the United States

the right to remove any sunken vessel or craft which constitutes

an obstruction to its navigable waters and which has existed

for more than 30 days. That statute also grants to the Sec-

retary of the Army the right to give notice by publication in

a newspaper published nearest to the locality of the ob-

struction.

The Supreme Court in Wyandotte Transportation Company

v. United States, 389 U.S. 191 (1967), held that the United

States had the right to remove vessels which had been neg-

ligently sunken in navigable waters and to recover the cost

of removal from those who caused the sinking. The Supreme

Court specifically referred to § 115 of the Restatement of the

Law, Restitution, as furnishing a Basis for the recovery of its

cost. Section 115 states that:

“A person who has performed the duty of another by

supplying things or services, although acting without

the other's knowledge or consent, is entitled to restitu-

tion from the other if

(a) he acted unofficiously and with intent to charge

therefor, and

(b) the things or services supplied were immediate-

ly necessary to satisfy the requirements of pub-

lic decency, health, or safety.”

The elements of this section of Restatement are complied

with here, since the statute cited above, 33 U.S.C. § 401 et seq.,

and more particularly $§ 409 and 414, impose a mandatory

duty upon the owncr of the sunken vessel to remove it, and

21

Nos. 74-1493-94 United States v. Boyd

since such vessel represents a hazard to other vessels em-

ployed in navigation.

The right to restitution did not accrue in this case until the

actual removal of the sunken barge, which occurred on May

21, 1971, and until the actual payment to the contractor, which

occurred on June 21, 1971. Since the action was brought in

December, 1972 against Boyd and in 1973 against Caldwell,

it would not be barred by either the three year or the six year

we see no need to discuss

constitutes the third cause of action. We merely note that the

obstructions thereto.

Boyd contends that the right of recovery extends only as

against the owner, Caldwell. While it is true that 33 U.S.C.

22

United States v. Boyd Nos. 74-1493-94

§ 409 imposes upon the owner the duty to remove the snnken

vessel, there is much evidence in the record to indicate that

Boyd held himself out as an owner and clothed himself with

the indicia of ownership with the acquiescence of Caldwell.

Also to be noted is the fact that 33 C.F.R. § 209.410, cited in

Wyandotte, supra, provides that a person who negligently

permits a vessel to sink in navigable waters of the United

States may be compelled to remove the wreck as a public

nuisance or pay for its removal. Judge Morton correctly

found that Boyd negligently permitted the vessel to sink in

navigable waters, and hence we believe was correct in affix-

ing joint and several liability against both Boyd and Caldwell.

Finally, we come to the question of “notice”. In that con-

nection, Caldwell contends that it received no notice of

either the sinking of the barge or of its removal. While 33

U.S.C. § 414 indicates that the giving of notice by the Gov-

ernment is discretionary, see Zubik v. United States, 190

F.2d 278 (3rd Cir. 1951), we believe that Caldwell should

he charged with notice, since it was the actual owner who

permitted Boyd to have possession and control and all indicia

of ostensible ownership. Furthermore, Boyd acknowledged

ownership and all inquiries indicated that he was the owner.

The District Court correctly conchyled that notice to Boyd

shonld be treated as notice to Caldwell.

Finding the other points raised by the appellants’ briefs to

be without merit, we affirm Judge Morton’s judgment.