Brief for the Respondent in Opposition — United States v. Bethlehem Steel Corp.

’ UNITED SraTES ‘OP AMERICA, ‘Peqrriowe

. : ea, * ; s

B UTHLSHEM STEEL CORPORATION et al...

= ea hry

.

‘es

"Brief for Respondents in Opposition |

- .M. "BAYARD Carcass

| Attorney. for Respondents,

a Bogle, Bogle & Gates yrs

_. Norton Building _

* Seattle, Washington 98104

GRE crave prinrine comeany

ie ; - 2,

“Fn the Suprenie Court of the :

’ os rans Rnited States.

GcroreR TERM, 1963.

6 } .

X

>

_UniT®b STATES OF AMERICA, PETITIONER

« */ ‘w. toa

_ BETHLEHEM STEEL CORPORATION et al.

>

Brief: for ‘Respondents in Opposition i,

| M. BAYARD: CRUTCHER.

Fa | . Attorney for Respondents

Bogle, Bogle & Gates 7

Norton. Building

Seattle, W ashington “Qs104,

i

Bee? 3 — a =

s, QUESTIONS PRESENTED ”

STATUTES AND RECU ‘LATIONS INV OLVED.

STATEMENT | |

INDEX". -° SS

-ARGUMENT—SUMMARY |

“

cerning wreck of the S.S. “Louisiana”

‘©

1.. Wreck Statute specifies owner’s right to

~ abandon,’ and gov ernment’s remedies

- against wreck and those responsible

2. General “Obstruction Statute, Sec. 403, |

is pdrt of scheme to solve ather prob- _

lems—Republic Steel is not in point

3. 1946 regulation inconsistent with pre-

vious, contrary court deci isions—it is an

anomaly | Sateen

4. Other’ contentions by petitions. are ill-

founded :

0. Added ground i in wapeort of bdiciens.

CONCLUSION ~ .

APPENDICES:

.

A. Principal. decisions. facts -

B. Comparative w réck statutes | |

C. Department of the Army pamphlet 27-

- .164, Par. 99. Removal of Sunken Vessels

D. Early Federal] statutes

E. Letter from Secretary of W ar to Chair-

| man of House Committee or Rivers and

Harbors ee ;

F. Opinion of Judge- Advocate Ge neral con-

17A-

Saye Fe CITATIONS: fe.

__Saeee: Reese Page

Af tor ne yaGe ne ar On€ ‘anada i uv. “Brister, (1945 ]

Ot. oo. oo 14

Baltimore, Cristield & Onancock L ine vr. United

State, 140 F.2d 230 (4 Cir.) 16

- Barraclough t. Brown [1897 | AX, 615- (House.

Sof Lords y" eas a 14

Rystern Transportation Ce.. in're. (D. Md.) 102 y

F.Supp. 913, aff'd sub nom. Ottenhieimer v,

Whitaker; 198 F.2d-289 (4 Cir.) Seieaaee | e

Gilman v. Philadelphia, 3 Wall. T1380 9, «14

“Highlands Nav igatron ¢ ‘or poration, Petition of,

20 F.2d 37 (2 Cir.) ; ; . Be:

. Loud v. United States, 286 Fed. 56 ke hades

a & | ee Brest do, 12, 16, TA

The MANHATTAN (United States v. Atlantic

- Refining Co., E. D. Pa:) 10 F. Supp..45, aff'd. .

Sp F.2d 427, cert! denied sub nom, a nited .

States v. The BESSEMER. 300 US. 634:-3,13. 2A

_ People t- Gott Ror Diteh & Vino 4 Co. . 66 Cal

1as a % . Y

Port ot Seattle : . Oregon &. a Oe Co...

255 US. 56 he at ) 16

The SCOTLAND, 105.U.S. 24 , eee»

Shephpew Glue dni Chemical W: ey gv. ONSEr as.

tors of poi VWedway, 25 Ll. dg x, “SA

The SWAN, 23 Fed. Cas. 495, x 667 ae.

SD.N.Y.) .. . 7

Thompson vv. Unite d St ates, 62 Gt. Cl. 310 15

United States 0. 2,220,000 Pana is Ghiorine-€ ar-

go 4 Pending, E.DtLa., Adm. No. 668—unre-

ported) | ; pee | . ae See 3

United States +. Bethlehen: Stee { Co iz et al.

below, 319 F.2d 512 (9 Cir.) * ae 5 ee

United St ate Sv. Bredgeport eee Line, fin. .

15. F.2d 240 «0. Conn. oes -* * 310,12, 1A

o \

CITATIONS: (Continued)

Cases: | | : Page. io

United States v. Republic Stec! Corp., 362 U.S :

482 oF a 4, M4, 18, 6A Ss

United States: v. Standard Oil Co:, 332 US 301 17

United eine v. Wilson; 235 F.2d 251 (2 Cir.)

i 10, 5A

U nited’ States wv. Lubik, 295 F. 24 93 (5 Cir. )

4,11, 18,54

Walk ‘er v. Boston pa Hope Insurance pom

. panies, 80 Mass.. 288 Se . ee

vu illamette Idi ‘Bridge Ca. v. Hatch, 125 US. 1.14 E -

*

Ww inpenny v. ‘Philadelphia. 65 Pa. 135 14, 16

Worth v. Steam-tug W M. MU RTAGH, 6 Fed.

192 (EDNY) uaredsemmas: ‘oh

~ Zubick 1 v. United Sta ES, 190 F.2d 275 (S Cir. iz me ee

FEDERAL STATI ‘TES:

: Page

Federal Disaster Act, 64 Stat. 1109 (1950)

Genera! Obstructions Statutes. Rivers and Har-

bors appropr lation acts:

“25 Stat. 423, 424, 425 (1888) ee | ee

26 Stat. 453, 454. (1890 )- eee oe

30 Stat. 1151, 1152°41899), 33 USC Secs.

. 4°. 408*, 407 . . . 10

' Penal statute. 30 Stat.: 11517 (1899).

amended 33 ISC Sec. 406 — a 10

Limitation of Vessel: Owner's laability Act, 16...

Stat. 459, 46 USC Sees. 181 et Seq. - ee

Submerged Lands Act, 67 ‘Stat. 30, 43 USC Sec.

eee ie eae 16

‘Wreck Statutes: oie

“ Special‘appropriations— oe

dD Stat. 129 (1836) Tee ISA

15 Stat. 174 (1868) WBA

17 Stat. 374° (1872). 133

General wrecks Statutes, in Rivets and’

Harbors Appropriation’ acts—

2] Stat.. - 197 (1880)

a 7

22 Stat. 208 (1882) Sneath Wer are |

26 Stat. 454 (1890) — eS | &

30 Stat. 1152, 1154 (1888). 33 3 USC ss 409°

alae oe ae | §

Penal statutes, 20 Stat. TBST, :

ae en. ee

31 USC Sec. Pe ee : Pap tee

| STATE WRECK STATUTES ©,

Laws of Massachusetts, 1883. c. 260 | GA.

Code of Meg Sec. 2011, as amended by Acts

1889-90, c. ; p. 624 ...... vecsaene |

"These sections are mentioned thr oughout the brief:

7

A [ x /

. ‘

vA de

ENGLISH. WRECh sb goicioen (he

“Dublin, Port and Docks Act, 32 & 38 Vict’ ch. c..

Se af Ot) { loe a! act 7 2 .

Harbours, Doeks. and Piers C lauses, Act, 184%,

LO & Ld Viet. ch. 27. s. 56 : e-

Manchester Ship Canal Act, 1936, sec. 32 (Ica ae :

YP =

2Ack t )

—— CITY ORDINANCE “9 hin

_ Ordinance es at ra S ity, of New York, ant. SC. 5,

* m3 ae te cgotcten Peete conearetgee dt foes YA

OTHER AL omiiies C ITE D

12 Op. Atty. ‘Gen. 494 1868) on ee pe st

15 Op Atty. Gen. 284 (aK77)- 6. , ©

, Brown on Personal Property. Sec. 6, pp. 9, 10... 15

"33.C. FER. 209.410 / |. pees te

32 Cong. Record 2297/2923. 0 erat a

Department of Rie Army) hamphilet 97-164,: “Mili-,

tary Reserddtions and’ Navigable Waters. ah

AC» (1961), Pg 99 . : els os

“General Adihiralt Rule. 51° Bee ae |

Johp Chipman Grav, The es and 1 Sours C8

of the Law (2d. ed. reprinte d. Boston 1963),

ehs/ IX, NIL . eee

ee Advoeate Genera! opinion, The LOUIS. .

ANA:C. 1s, $24 61905) - 11, 17A°

-Willam Palmer, The. Law of Wreck (london,

if 18435), p. Se BG

Report of Hearings, House,Committee on Riv- |

ers and Harbors, Jos _ Congress. “Ord Sess.

@ on H.R. 11512 - ( 193 ° 12, 1DA

‘ Restatement. Re pall 16

Washingten State Constitution, Art. 17, Sec. 1

vol. 0, ing ‘W. Dp. 80 ‘ en oc

in the Supreme Court of the |

Huited States

' +” OcTopeR TERM, 1963 _

a .

UNITED STATES. OF: AMERICA, PETITIONER

7 x. |

BETHLEHEM STEEL CORPORATION et al.

Brief for Respondents .in Opposition |

“ .

QUESTIONS PRESENTED

In its pleadizgs in district ‘court and in its state-

ment of points on appeal in ‘the court: of appeals

the government repeatedly alleged that TEXMAR .

. sank. (Answer, par. IX, R. 18, 19, 20; Claim, par.

VII, R. 24, 25, 26: Statement of .Points, par. 1, R.

54). We infer that the government alleged asink- °

ing in .order’to take advantage of 35 U.S.C. § 409, -

which, makes it a crime to carelessly sink a vessel,

and which forms the springboard for. petitioner’s

_ argument about “statutory duty”. Whatever the...

_reason, the court of appeals took the government’s

allegations at face Vv alue :

‘This case presents. the question whether

a ship owner who by his negligence causes.

c the ship to-sink in a channel where it will,

~ until.removed, constitute an obstruction to

.. Navigation, is liable to the United States for

; the cost incurred by the. United States in

7

. ° F.2d°513. ae

We -know and. the government, knows that the.

TEXM: AR did not sink. Buy we are obliged to’ take

the government's ‘alleg ations.;as true—as its at-.

terney” SWears, K. sieand comune: cannot now

“change the premise of its, Gase, asking this court »

to review Something the ecurts below were not

‘alled upon to consider. :

We suggest that the only. question here cany Be

the question raised by the pleadings and comisidered,

by the court of appeals, as Stated, above by Judge:

Madden. cee ke ; :

aN oe < > |

e

STATUTES AND REG CLA ATION INVOLVED | ae

We do. not agree that the Lilditation. of Vessel

~ Owner's Liability Act is involvéd | in this appéal.

Assumiig as we must that petitioner’ Ss allegations

are true, respondents have no right to limit ‘their

- liability. _The cuestion is whether petitioner: has -

-any in pe rsonan? claim against respondents for the

~ expense of wreck removal. st eee ai

STATEMENT

‘removing the ship fOr the: channel.” ~ : S10: |

Petitioner made no mention of the fog which was

: ee reason for this accident in 1 ie fixst aa (R..,

6, 23). -

Petitioner implied that respondents gave some-

thing less than. a. full abandonment, of the ‘wreek.

(Pet. . 93) In fact, Bethlehem, the sole owner of the

TEXMAR; abandoned ail of its interest in the

wreck four days aftér the accident. - (Answer, par.

VI, K. 17) Calmer Steamship Corporation, the car,

ae

3°. ae

rier, calem what eargo it could for te eonetit sage

‘of the cargé owners, after their esses canaion

. roflised to'do anything. (R.34-87) . ze

“The ‘governmem made no move to save any

cargo. (R.48)°. 1 east

| ARGUMENT.

. This case concerns: the accidental sinking—or, as

the- government now argues, stranding — of the

steamer TEXMAR, a ship outbound from Aberdeen -

with a full cargo. The ship ran aground in a public

channel in Grays Harbor ahd broke her’ back. Sa

was then a wreck.

f ° €

id

| No court in the Unite a States or in Englana has’

_. ever ‘deriied’a shipowner the ‘right to abaridon the

wreck in such circumstances,

In a series of no less than six. decinidns starting

phos Loud v United States, 286 Fed. 56° (6 Cir. .

1923),.our Federal courts have consistently” held ©

that the Wreck Statute, 38 USC §§ 409, 414, 415

confirms the right to abandon a wreck end that it

~ does ‘not | impose any in personem liability on the

former owner for expenses incurred by the govern- ;

ment in removing a wreck. from a public channel.

“As summarized in The MANHATTAN (United

States v. Atlantic Refining Co. Sts bak 45. 49,

approved on. appeal, 85 F.2d 427, 429 (3 Cir. 1936),

cert. denied, Sub nom. U nited . proiig DS. The, BES-

SEMER, 300 U.S. 684:

. :

sis

before the. onactment of the Wreck Statute.

the owner of u sunken vessel always had the

1. Citations and ders: in cach case are set out th Appendix A

Re. : ‘

a Loy *

-

In the absence -gf any statute and’

“$:70. °

“right to abandon her and thus entirely ab-

sSolye himself from lability for damages

caused by the “Obstruction of the channel.

~

» &5.Pa. 135. The theory’of the law was that

if, the sunken-vessel is a menace ‘to naviga-

tion its disposition is a ‘matter of - public

concern, and fhat the ewner has suffered

sufficient loss.in the loss of the craft and

no further loss will be imposed upon him

_ by way of damages for subsequert accident,

_ provided always that be has abandoned it.

Gulf Coast Transp. Ca». Ruddock-Orleans

Cupress Company (D.C.) 17 F.2d 858. . ..

-“The Wreck Statute, U.S.C. tit. 33, §§ 409,

414, 415 (33 USCA $$ 409, 414, 415), did not °

_materially change the law in this respect.”

Congress can at anv time change this law. In

particular it can impose i pesgonam liability upon

the former owner for expenses. of wreck removal,

as is done expressly by English acts.and by numer-

‘ous nineteenth century state statutes and local

ordinances. Indeed, our Federal Wreck Statute

is almost unique in omitting such provision. But

‘what petitidner asks js a judicial fiat to insert it

anyway. United States v. Zubik, 295 F.2d 53, 54, 55

(3 Cir. 1961); United States v. Bethleheni’ Steel

Crp. et al., below, 319 F.2d 512, 520 (9 Cir, 1963)..

The decision below does not collide with the ruling

in United States v. Republic Steel Corp., 362 U.S.

482 (1960). Wrecks — accidental obstructions —

have always been considered differently than pur-

prestures and other volitional obstructions to navi-

gation. Our Wreck Statute evolved from legisla-

tion wholly disassociated from Sec. 403, upon which __.

_ 2? Typical statutes and ordinance are set out in Appendix B

See Winpenny and Chedester v Philadelphia,

"s . hee an ae

| petitioner relies. Indeed, if a wreck is an “obstruc- -

fi tion” within.the ambit of Sec. 403, as suggested by

Judge Browning, what is the point to the W reck

Statute? Talk about negligence .is meaningless,

because Sec. 403 is said to prohibit “any thing, what-

‘ever done or however dohe ***. which tends to

destroy the navigable capacity.” .

Petitioner's argument implies that the, Wreck

Statute itself is superfluous, whereas the Statute’s

history gives it cogent meaning Ww hich altogether

. discredits that argument.

The’ alleged “administrative interpretation” of

the Wreck Statute is perhaps best eres in a

. recent, Army, pens ‘

=)

“The owners of a sunken vessel; of course,

> have the primary right to remove it. Once

3 abandonment has been established, however,

the United: States may, apply such value as

the sunken vessel may-have to the. pay ment

of the ‘cost of removal.” In: removing an

abandoned sunken vessel from the navigable

‘-waters of the United: States, ‘the United

States is limited in its recovery to.the value

- Of the vessel and its. cargo. A claim for

further reimbursement against the owners:

i - * may not be-made. a ;

Departigent of the Army pamphlet 27- 164,

MILITA 1Y RESERVATIONS.AND NAVIGABLE

WATERS (July 1961), Par. 99. Removal of

Sunken.Vessels, p- 182. °

3. Full text of Par. 99 is set out insAppendix C.

.

2 .

” . : j 6

ae es eS

1. The Wreck Statute specifies the owner's right to

abandon a wreck. and the government’. remedies

against the wreeh and against, those responsible for.

the Wieck ; Ree Se ee

The sense of the Wreck Statute, and of the dif:

ference between it and the other parts of the Riyers

and Harbors. Appropriation Act of 1899, are best.

‘gleaned by considering the advances in law and the

problems which confronted Congress in the Nine-

teenth Century. a é

Starting with a tentative act in 1824, Congress

embarked upon an historic program to improve

and maintain our rivers and harbors to aid naviga-

‘tion.. In 1836 it made a specific appropriation to

remove a wreck tm the harbor of New Bedford, and

thereafter’ it made other such specific appropria- .

tions’ until a general statute. was finally made to |

eover removal of wrecks, in 1880. ar-

Four things hindered the engineers. ‘First, and

foremost, the district engineer had to have an ap-

propriation to spend money upon a particular wreck

or upon the particular waterway obstructed by the

wreck. See 12 Op. Atty. Gen. 494 (1868), concern-

ee the wreck of ‘the steamship SCOTLAND, and_

15 Op. Atty. Gen. 284 (1877), concerning the Ww eas

of the schooner E. F. MEANY. :

Second, the ‘Gebvick engineer nee ‘ded some assur-.

ance tha tithe wreck was abandoned and that: he

would not be destroying someonets property... There

. Was no presumption of-aban ea and no pre-

scmbed procedure 4 hereby the former owttess

give notice of abandonment. .

pe gwle ctatitac oe st iy

4.. Citations to edrly statutes are’set out in’. prpendix D...

= ‘

ee —

Third, shipping needed protection against wrecks

‘in navigable channels, whether or not they were.

abandoned. The SWAN, 23 Fed. Cas. 495, No. 13,667

(CC, SDNY 1855), had’ ruled that an enocent

owner had no duty to mark the wreck. W OrtR 2

Steam-tug WM. MURTAGH, 6 -Fed. 192 (EDNY

ISST), ruled that the offending ship was not liable

to another vessel for failing to raise or mark the”

vessel it sank. | : : :

Fourth, public authorities were balked by salvors

who took: months and sometimes vears trying to

salv age a wreck which endangered navigation, For: -

exemple, the steamship “SCOTLAND” was wrecked

’ -off Sandy Hook in 1866. Two. vears later it was

still there. Congress appropriated $100,000 to re-

move it, but. private sal¥ors tried'to keep’ possession:

of the wreck nevertheless. See Appropriation - ‘Act

of July 25, 1868, 15 Stat. 174 anid 12 Op. Atty. Gen.

194 (1868).

The first Federal wreck statute, Sec. 4 of the

Rivers and Harbors Approprigtion Act of 189% 21

Stat. 197, gave the War Department power to ad-

vertise notice to establish as a matter of law that

a sunken wreck was derelict.: It made a permanent

appropriation for the removal of wrecks from any

river, lake, harbor, or bay, or other navigable water

of the v Inited States. arr “}

°

Eg

This statute was amended by the next Congress

(1582) to allow. sale of the sunken wreck to the

contractor as it lay. .22 Stat. 208.

In 1890 Congress added a provision that wrecks

not raised within two months. were subject to be

broken up or removed by the -War Department

*

.8

without liability for any’ damage to the owners:

26 Stat. 454, Sec. &.. ae

The. Rivers and Harbors Appropriation Act of .

1899, sec. 19, 30 Stat. 1154, consolidated the, fore-

going acts, casting them in new form and shorten-

ing the. time for presumptive abandonment to 30

days. At the same time (i899) Congress solved _

the third and fourth problems above mentioned, by

imposing an absolute duty upon the vessel owner

to mark his stinken wreck until such time as he

either raised: it or abandoned it, and,by requiring ©

him to proceed immediately with removal if he in-

tended to Salvage’ the wréck. See. 15 (now 33 USC

§ 409). ie f ene

In summAry, the Wreck Statute as now consti-

tuted makes it a misdemeanor ‘to voluntarily or:

carelessly sink a vessel ina navigable channel, and

requires the owner of any vessel wrecked and sunk

in a navigable channel to mark it immediately and

to maintain the marker until the wreck is removed

or. abandoned. -If he intends to salvage he_has to

- start immediately and pr osecute such-removal dili-

gently: otherwise, the w reck is considered aban-

_ doned. 35 USCS $ 409 —

Every person and. every corporation that violates

Sec. 409-is subject to fine or imprisonment. 33 USC

§ 411.

“Any vessel used or employed in violating Sec.,

-409 is liable for the pecuniary penalties specified

-in Sec. 411. If sunk and abandoned,: the wreck is ‘> Z

- forfeit if the District Engineer determines to re-

move it as an obstruction to navigation. 33 USC

§ 414.

15.

{ \ ; a 9

r ! . :

Whether sunk or not, and whether abandoned or |

- not, a vessel which seriously interferes with navi-

gation is subject to-immediate seizure and removal

or destruction, at the » vessel’ & expense. 33 usc §

| a

The permanent appropriation for expenses of |

wreck removal is continued in.31 USC § 725a.

2. The general obstruction statute. Sec. 403. was part

of a scheme.to solve problems other than. ship-

wrecks .

| The very cases which petitioner cites demonstrate

other problems which confronted shipping iri the .

Nineteenth Century—hydraulic mine ‘tailings, rot-

ting hulks, low bridges, damage to improvements .

already built ‘by the engineers, etc. An indictable

nuisance could be enjoined by a State. People v.

Gold Run Ditch & Mining Co., 66 Cal. 138 (1584). i

But there.was no correlative “common-law of the

United States” which pr prohibited obstructiotis in”

navigable -waters. Willamette Iron Bridge Co. v.

Hatch, 125 US 1, §, 3a L.ed. 629, 632, 8,S.Ct. 811

(1888). .

“It is for Congress to determine. when its

full power shall be: brought into activity, and

as to the regulations and sanctions which

shall be ‘provided.” Gilman v. Philadelphia.

3 Wall. 713, 725 (1866).

Thus it was that in August, 1888, five months.

after Willamette Iron Bridge Co.., Congress passed.

an act controlling the height, span; ‘and placement

of bridges and bridge. piers and abutments. Rivers

and Harbors Appropriation Act of 1888, 25 Stat’

——

or other wa

ee a |

400, 423, 424, 425. Two years later Congress made

it unlawful t tag te aff storie, earth, rubbish, w reck,

e of “any. kind which might obstruct.

navigation; made- i unlawful to. build: any wharf,

dam, breakwater, or structure of any kind wach

might obstruct navigation; and, generally, prohib-

ited the, creation of any obstruction, not’ affirma-,

tively authorized by law, to the navigable capacity

of any waters of ‘the United States. Rivers and

Harbors Appropriation Net of 1890, Secs. 6; 7, 10,

26 Stat. 453, 454.. Shipwrecks were -not considered

within the purview. of these sections. They were

dealt with separately, in Sec. 8, 26 Stat. 4 oy, alte adv

mentioned.

The 1899 act, 30 Stat. 1121, 1151-1155, brought

all of these ‘general statutes together, in somewhat

revised fagém—The bill was represented to’ Congress

~as 2 codification of existing laws with no essential .

ey

changes. 3o2.Cong. Rec. 2297 (Senate), 2923

(House). Significantly, Congress did not merge

‘the Wreck Statute with the “general obstruction

‘statute”, and provided diffgrent remedies+ a.

- pare Sec. 12, now amended and appearing a¥ 33 US

S 406; - with See. 16; now appearing as. 33 a

oo

$§ 411, 212.

Section 403 ate not-ap ply tio shipwrec ks. United

States vo Bridgeport Towing Line, Inc. 15 F.2d 240,

241 (D. Conn. 1926); In re Edstern Transportation

Co., 102 F.Supp-#43,.916 (D. Md. 1952), aff'd sub

nom. Ottenhe bner v. Whittaker, 198 F.2d 289 (4 Cir.

1962): United States v. Wilson, 235 F.2d 251, 253

- (2 Cir. 1956). cane |

To give “obstructions” prosgribed in See. 403

such broad sweep that they embrace ' shipwrecks

va v nited States v-. _ Zubik 20% 1 .2d 53-58

»

us

' dealt with in Sec. 409 might be gobd rhetorical’

logic, but it is historical nonsense.

It was for this reason that both the Third Circuit’

and the Ninth Circuit agre ed: 7 . -

“United States v. ‘Republic: Steel’ Corp..

Supra, has no impact upon the issue in‘the

‘instant case. “The questions there presented

and decided. are’ entirely unrelated.to the

problem here invalved.” ae :

ans

a

~ Cir. 1961):

,

jf. <

United States | uv. Be ua chem Steel Corp.. beiow, 319

F.2d, 520.

eon wile , pee SD

$4. The. 1916) regulation was not contemporaneous

‘with the 1% 9 act. and did not folloy preceding

construction and court decisions

Section’ 209. 410 of 30 C.F.R. quoted by petitioner,

PP. 49, 50, is an anomoly.

+Before dealing with it, hoe ‘ver, We should point

out. that: the’ informal 1901 letter,. pet., ‘p. 52, is

clearly extraneous. There is nothing to indicate

Whether the wreck of the, CASCADE was aban-

‘doned, and whether or not it dbstructed’a public. '

: channel. The legal advice w ‘as wretwtous at best.

In 1905 the Judge- pnt lenient ‘informed

the Secretary we W ar that an owner had the right

to abandon a- wreck Inta public ‘channel: wengut

regard to. any. question of negligence. Subject

Wreck

©. Full text is set ‘out in Appendix F

SS LOUISIANA of the Southern Pacific

- Company, C. 18, S24, Novem er 14, 1905.

ry

° <9!

wR

‘This latter, opinion was confirmed by United

States v. Bridgeport Towing Line, Inc., 15 F.2d 240

(D,.Conn.) in 1926.°3 © ~

‘In 1931-the. House Committee on Rivers sand Har-

bors considered a bill to amend the ‘Rivers and

Harbors Act of 1899. ‘Among many other things

the amendment would have made it unlawful. to

abandon any wreck which might in whole or..in

part float into and upon navigable waters of the

United States. The War Devartment opposed, the

amendments, with one exception not relevant here.

The Hon. .Patrick J. Hurley, Secretary of War,

wrote to a ecacipones Bf the Committee: . es

“The present law is comprehensive ona has

proven reasonably effective, both as a pre- |

ventive and remedial measure. During the ,

long period it has beén in existence its pro-

- visions have been the subject of judicial in- -

' terpretation gnd decision, and the public has

become acquainted with: its requirements¢ .

and meaning: * If legislation creating

‘new offenses or correcting of the abuses is

needed: to supplement the existing law it

should preferably take the form of a > acer

and independe nt measure.’

Repozi of. Hearings before the House Committee,

on Rivers and Harbors, 71st Congress, od Sess.. on

H.R. 11512- (1931).

", At this point the pertirient reported decisions

were United States v. Bridgeport Towing Line, Inc.,-

- above-mentioned, and Loud v. United States, 286

Fed. 56: (6 Cir. 1923), both confirming that ship-

owners had ‘a right to ‘abandon wrecks, whether

they had been negligent or not, and that the former -

6. Full text of letter is set out as Appendix E

‘

.

13

owners had no personai liability te the eoeeraiet

‘for the cost of wreck removal..

The MANHATTAN, ho F.Supp. 45, affirmied, 85

F.2d 427, cert. denied, 300 U.S. 654, confirmed that

interpretation again, in 1936.

Judge Madden correctly stated: :

“The last s sentence of the as would .

neatly solve our problem. But what it said

was contrary to judicial decisions at the timé

the regulation was issued [1946], and was,

if we are correct in our estimate of what the

Statutes mean, an unauthorized effort to ad-

ministratively .improve the. statute.”

United States v. Bethlehem Steel. Corp.., below, 319 ©

_F.2d,'520: We find nt instance where this regula-

_ tion has’ been enforced or even acknowledged by

any co ort. a

~

1. Other contentions by petitioner are inivied:

a.” Petitioner states that respondents do not dény

that their negligence caused thé .wreck, and that —

. they .violated a criminal statute, 33 USC § 409.

(Pet., p. 6): We emphatically deny both statements.

‘We are obliged to assume the truth of petitioner's *

allegations for the purposes of this proceeding.

b. Petitioner suggests that this court. invent,

- some Federal common law to supplement the pres-

ent statutes. (Pet., pp. 13, 14)

As we understand it, common law derives from

Judicial ‘decisions ‘and customs... John Chipman -

7. Even Army pamphiet:2 27-164, Appendix C, makes no men-

tion of this ana :olous regulation

14°

Gray, The Nature and Sources of the Law, Chs. IX, -

XII (Beacon Press Edi, Boston, 1963, pp..19§ et —

- seq., 282 et seq.) So far as judicial decisions are

concerned, this Court has on at least three occagions | :

ruled that there is no Federal-common law prohibit-"

ing obstructions to navigable waters. It is for Con- -

“gress to determine appropriate | regulations and

sanctions.’ Gilman v. Philadg shia. 3 Wall. 713, 724,

725 (1866); Willamette Iron Bridge Co. «. Hatch,

125 US 1, 8 (1888); United States v Republic Steel «

Corp., 362 US 482, 486 (1960). *

So far as custom goes, the decisions; are unani-

.mous: men who suffer the wreck of their ships in.

public waters have always been entitled to abandon

‘them. Winpenny v. Philadelphia, 65 Pa. 135, 138, °

139 (1870) ; Petition of Highlands wah ata Cor-

epic 29 F. sa of, 38 (2 casi sical be |

“The ani of the Crown to remove ‘the

obstruction [five hulks in the waters of Hali-

fax Harbor] and charge the owner with the

cost is axremedy not existing at common lay,

and means are’ provided ‘in tie statute to

“recover the expense,. such means being a

- Special and particular remedy.’

Attorney- Gexeral of Canada v. Brister, [1943] 3

DLR. 50, 17 Mar. L.R. 93, 106 (Nova Scotia).

- &

“The respondents were under no liability

to pay these expenses [of wreck removal] at

common law. The liability, if it exists, is

‘created by the enactment I have quoted [ Aire

and Calder Navigation Act, 1889, 8.47}."

Barraclough v. Brown, § Asp. Mar. Cas. (NS) 290,

291 (HL, 1897, Lord Herachell).

1b

ee cutting off in another direction, peti-..

dae argues that the respondent Bethlehem’s right

to abandon the wreck of the TEXMAR derives

_ solely from statute—the: Limitation of Vessel Own-*

-er’s Liability Act, 46 USC S§.181 et seq. (Pet:,

‘gm ys: | :

On its face this Act applies to wholé ships dna

wrecked ships “alike. The “abandoning the ship

and freight” mentioned in The. SCOTLAND, 105 US

24, 28 (1881), means the surrender described in °

General Admiralty Rule 51. It is a foreshortened

éxpression of.the term used in Europe, “abandoning”

the ship and freight.to the creditors,” as poy maxi-

mum liability of the shipowner. Walker: v. Boston

‘and Hope Insurance p Companies, 80 Mass. "288. 297 |

(1859). 4 Yee. : |

Here we are coneerned with abandonment of per-

sonal . Brown on Personal Pr operty, Sec.

6,pp. 9, 19: Thompson v. United States. 62 Ct.Cl. -

516, 524, 525° (1926). - os aha

~The wreck having sunk or stranucd.on the shore

within Grays Harbor Coun, we are dealing ane

commen law, not maritime law. Willam Palmer,

The Law of W reck (London, 1843 P. eo ae ee

d. Confusing tie issue at hand Ww ith. the right

to limitation of liability, petitioner blandly asserts

that only “innocent” owners may: abandon wrecks

. and thereby: absolve themselves of liability. (Pet.,

p. 12). Liability to whom” |

Not a single case cited by petitioner holds or inti-

matés that the sovereign—the United States gov-

ernment or a state or the Quéen of England—is en-

titled to recover from’ a former. owner the cost of

\ re ; ng ;

aaa

removing a wheek accidentally lost in public waters.

The rights of other vessels, dock owners, and pro-

_prietors- of British conservancies and = canals are

measured by tort law, which is not. involved, in this

case.:

Os Parpighoit its srauundat peti_ioner equates, |

this:wreck with trespass ‘or nuisance, and reasons »

therefrom that the Government has an extra—stat- |

utory cause of action to recover damages or resti-

tution. ;

There Was no trespass: The State of Bias

owns the bed of Grays Harbor. State Constitution,

Art. 17 Sec. 1, vol. 0, RCW p. 80; Port of Seattle v.

‘Oregon & Washington R. Co., 255 US 56, 63:41921) ;

) Submerged Lands Act, 67 Stat..30, 43 USC Sec. 1311.

A eae ship has never been considered. a pur-

ie presture or an indictable nuisance. See authorities

quoted and cited in Winpenny v. Philadelphia; 65

‘Pa. 135,. 138, 139 (1870) -

The government removes or destroys a wreck.

when and as it sees fit to carry out its -governmental

function to make navigation. safe, not to perform

some private shipowner’s duty. Baltimore, Cris-

fielé@ &*Onancock. Line v. United States, 140 F.2d

230, go3 (4 Cir. 1944). The expense does no benefit — |

to the man who has already lost his ship. Hence

the government has no’claim to restitution from

him. ‘Loud'v. United States, 286 Fed. 56, 59 (6 Cir.

1923)> Petitioner’ S citation from the Restatement :

of- Restitution is Ing Ppropos. a: | ‘.

f. Petitioner argues that wreck removal is a.

burden on‘the public purse. (Pet., p. 15) It cites

‘a pending case, United States v. 2,220,000 Pounds

#

ee

Chlorine Car go ea’ Bar ge. Wychem, et al., as a vivid:

example.

\In its brief.in that case, the government s says that!

the barge was no obstruction to navigation. The

- cargo was removed pursuant to the Federal. Disas-

ter Act, P. L. 81-875, 64 Stat. 1109 (1950). ‘We fail

to see its relevance: ‘here.

*

If. indeed wreck removal — become a burde1

_ which Congress: feels should be shifted to private.

- Shipping, as in England, Congress is free to change ¢

the’ rules at any.time. But this Court ought not to

change the rules to accomniodate the Executive's

: a of what fisca! policy should be. United States

» Standard Oil Co., 332 US 301 (1947), is precisely

in point: :

“It ( the tort law analogy) , ‘is advanced

rather as the instrument for. determining and

\

_ establishing the federal fiscai and regulatory. -

“, policies\which the Government’s executive ‘

arm thinks should prevail ina situation not

covered by trad ‘tionally. . established liabili-

é ties.

“Whatever “he merits of es ‘poles , ‘its

conversion into law is a proper -subject for

congressional suction, not for any creative

- power of ours ”’ 332 U S.,314. ° a

5 &s } re

02. -dded Ground in Support of, Decreé i

attitude taken by. the’ government when this acei-

> ‘ ° ™ ~ : ;

‘In both courts below we pointed-out the peculija

dent occurred. &

Two weeks after the accident the District Engi-

neer simultaneously ‘declared the wreck to be an

°

Fy

I

5

'

Ee ava 18

obstruction to “navigation within, the’ aie of

both’ Sections $14 and 415 ‘of Title 33, U. S. Code,

announced that he was taking action to remove or

destroy it as provided by sgid statutes, and denied

Bethleacm theeright to abandon it. (Telegram, R.

28)

» The District Engineer cannot proceed under both

SeculonS at Once—t hey are alternative. Since Beth-

déhem had already abandoned the wreck, the en-

‘gineer no do&bt had his chowee, Pat we have main-

tained, and do here maintain, that this cannot be*

a frivolous choice. If he dete rmined asa fact.that .

@ the wreck created an emergency, ‘requiring sum-

mary seizure under Section .415,\ as stéted in his

telegram, then the District. Engineer p¥oceeded

under Section 415, not Seetion 414. Phe govern-

ments rights in thigeaasg are meastired by the terms

of Section 415, and anv question of -abandonment |

is moot. : ec; ; ‘

-CONELE STON

a

Courts of appeals have agreed in their int ‘gh ob

tation of the Wreck Statute; @ver,a span of Orty

¢ . . ai p ‘ . “4 ~ , i « oh ed f >)

Vears. As long ago as 1931 the Secretar vO a al

: ye —

concluded that. its Meaming Was settled, ad that

wt had prover reasonably effective. both as a pre-

- ventive and remedial measure. Histor Seca wrecks

tla ! nd | f* 5 bs . ° ) 3) ; y

and vo! ional obstructions ‘have been treated as

a . a

. IN yy er er Se% = ‘ Rk. - fa eo . ° -}

eae) diferent subjects, both by Congress and

by the courts; thee as mo Senwine connection. be-

Wines the problem dealt with in United: States’ y+

Republic Stevitand t iol os blem dealt with in United |

a

- * States.. z whik and in this. Case

” «

November 1963

19 °

For thes se reasons We respectfully shbmait that the

petition should bé denied. aed

M. Bay ARD' CRU TCHEh

* Attorney for Respondents

Bogle, Bogle & Gates

«Norton Building

Seattle, W ashington as104 :

<> bs

.

4

ie

\e

“1A

roils A

Federal Decisions on a» MG Abandonment

and Expenses for Wreck Removal

Since 1899 there he ve been six ajor decisions by

federal courts bearing on thé right of abandonment

and the question of indemnity to the government

for expenses of wreck. removal. We cite them in

chronological order. ae

In LOUD 3. UNITED STATES (6 Cir. 1928) 286

. Fed. 56, a power barge collided with an abutment

- and sank in St: Mary’s River. The District Engineer

straightened the sunken vessel to clear the channel

from this obstruction, upon authority of § 415. The

United States claimed for its expenses. The court.

of appeals rejected the claim. ‘

es ike af: is equally clear that the owner of a

" |. vessel is not personally liable for the expense

incurréd by the government in removing ob-

structions ‘to navigation under authority of

this section,‘ but, on the contrary, that. the:

claim for such expenses must be asserted

_direetly’ against the vessel and its cargo. The

further claim of the United. States govern-

ment that... this money was, expended for

the use and henefit of the.owners .. . is

* negatived by, the- uncontradicted evidence

- that this vessel. was a total loss . ..." 286

Fed., 59. \ ;

In UNITED STATES 3. BREDGEPORT TOWING

LINE, ENC. (D. Conn. 1926). 15 F.2d 240, defendant

was trying to salvage an abandoned barge. By de-

‘fendant’s ‘negligence the barge sank and became’

an obstruction to navigation. The government sued

2A

to compel defendant to remove it. The court denied

an injunction. oa

2

-

“(The Rivers and Harbors Act, ‘§§ 403,

406) is not applicable. to a case of accident

or negligence. ‘In other. words, when the

: Statute speaks of the ‘creation of any ob-—

Struction,”” what is meant is evidently the

consciously directed. action to such an

end.... ns :

oe

- . . The differentiating eircumstance

(between United States v. Hall (1 Cir. 1894)

63 ‘Fed. 472, and the present case) lies in

the fact that the sinking of the vessel was

not deliberate, was not intended, but was due

; . to an accident which, whether caused by

negligence or not, remains nevertheless an

accident.” 15 F:2d 241. ht NES rey

In THE MANHATTAN (United States v. ‘Atlantic

Refining Co., E.D. Pa. 1935) 10 F.Supp. 45, respond-

ent’s ship BESSEMER collided with the government's

— dr@dge MANHATTAN, which sank in the Delaware

River. The government raised the dredge. and

claimed the cost of raising as part of its collision.

damages. The court rejécted that item asin ele-

ment of. collision damages. aL

‘ pe *

“I fully agree :with the Commissioner's

conclusion that this is not an item whieh can

be added to the government's recoverable

damages. In the absence of any statute and

before the enactment of the Wreck Statute.

the owner of a sunken vessel always: had the.

right to abandor her and@ thus entirely ab- ‘

solve himself from liability ‘for damages

caused by the obstruction of the channel.

See Winpenny and Chedester v. Philadelphia,

65 Pa. 135. The theory of the law was that

ca wee

if the’ sunken vessel is a menance to naviga-

tion its disposition is a matter of public. con-

cern, and that the owner has suffered :suffi-_

cient loss in the loss of the craft and no fur-

ther loss will be imposed updn him by way of

damages for os ie. Lb © accident, provided

always that he has abandoned it. Gulf Coast

Transp. Co. v.* Ruddock - Orleans Cypress

Company (D.C:) 17 F.2d 858, It follows:that

Since the removal could net have been re-

quired of the: Qwner, its cost In no Way in--—

creased his loss and consequently could not —

have been charged by him to the wrorigdoer.

“The Wreck Statute, U.S.C. tit. 33, $8 409,

414, 415 (355 USCA $$ 409, 414, 415), did not

materially change thé law in this respect.

Section 415 [409] reaffirms the duty to mark -

the wreck. It applies to the goyernment as

well as private owners, The SNUG HARBOR

(Eastern Transp. €o. v. United States) 283

Fed. 1015 (-D.C.). But we have nothing to

do with that section in this case, Section 414

merely reaffirms the law as.it stood by. which

the owner terminates his liability by aban-

donment (Which may consist in doing noth-

ing for thirty davs) and the Secretary of

War is authorized (but not required) to as-

sume the general governmental duty of clear:

ing the navig yable channel. Seetion 115 pro-

vides that he may perform this duty without

vaiting for abandonment by the owner. The

only pass ible change effected -by these .sta-

tutes is that the government is given cither

the wreck itself’ (im case of removal after

abandonment} or a lie Nn “gainst it for-the

amount: expended (in case of immediate re-

moval before abandonment).

“Although: I think - it clear that aeolian

414 and 115 of-the statute Ware. not intended |

to apply to governmental Vessels sunk in

=

S4A

navigable channels, the question is of no

Moment, because whatever cost falls upon ©

the government in removing any vessel oc- °

curs by reason of its general powers,and * *-

functions and not by reason of its ownership °

. Of the wreck. The burden upon ‘the govern-

‘ment. is. exactly ‘the same whether thé vessel ——--- ~~

sunk ‘is government owned or privately

» owned, or’whether it was sunk by wrongful.

act or by. pure accident: — ae

“So. far as I know the right of recoupment

against a tort-feasor who causes a sinking

_ has never been asserted by the government

in case the wreck was privately owned, and

I can find nothing imthe statute which cre-'

ates such a right either in the case of pri-

_ Vately owned vessels or ‘of those which are -

. the property of the government. In fact, the

rights tn rem which are conferred would,

seem to negative that: intent. At any.rate

the statute ‘is. silent upon the subject.” 10

F.Supp., 49, 50, expressly approved on appeal,

3 Cir. 1936, 85 F.2d 427. 429, cert. denied sub —

nom. United States v. THE BESSEMER, 300

~ U.S. 654. «> as ‘ oe oD

_ In ZUBIK +.,.UNITED STATES (3 Cir. 1951) 190

F.2d 278, libelant bought a sunken wreck. There-

after the district engineer raised it. Zubik offered

to pay the government’s expenses in return for the

wreck. The district engineer refused, and Zubik

sued to recover it. The court dismissed his libel.

“(Section 414) expressly gives (the Secre-

tary of the Army) the discretion to sell the

barge and in such case all the proceeds must

go into the Treasury. The courts cannot in-

terfere with this discretion given him. It is:

immaterial that as a matter of hindsight it

appears that: the government stands to gain

¢

oo MED. yy:

Co

f

&

5A

rather than lose by the deal. If the costs of

removal exceeded the value of the barge the

owner would not be liable for the difference.

“He cannot conversely, claim the benefits sim-

ply because the salvage operations ee

financially successful.” 190 F.2d, 281.

TE MFED. STATES - ». WILSON (2 Cir, 1956), 235

F.2d 251, ‘the governme mt stied to compel the de-

fendants to remove a sunken barge from the Hud- ~

son River. . There was evidence that the barge had

~ been deliberately scuttled, but no finding.that it

was done at the owner's behest or with Ipis knowl-

_ edge. : The court de nied an injunction.

“Clearly, our sunken barge is not a “‘struc-

. ture prohibited by (§§ 401 and 404) which

were concerned with bridges, dams, piers,

wharves, etc. Nor, we hold, was it a ‘struc-

ture’ as denounced in 4% 403). 0. . Under

($8409) it is the duty of the owner of a

sunken craft to commence the immediate re-

moval thereof. But failure to remove is ‘eGn-

sidered as an abandonment’ thereof which is

grounds for removal hy the Unite d States-as

provided for by ¢s 414). And ($414) con-

- fers powers on the Secretary of War to re-

move the craft with provision (not to charge

’ the cost of removal to the owne r) to forfeit

the.craft, to the contractor ee to ae-

complish the removal.

“Thus we find nothing in the 1899 Act

‘which justifies an injunction ~whereby the.

‘cost of removal may be saddled uport any of —

these de fendants.’ ‘ 235 F.2d, 2533.

\

- Finally, in U NITED, STATES 5. ZUBIK- (5 Cir.

1961) 295 F.2d 53, defendant negligently sank, two

towboats in the Allegheny River, in such manner as:

to obstruct navigation. The government demanded

——

6A :

-that he remove them. He did not, lak the district

‘engineer then removed the wreckage’ and brought

7

action against him alleging that the wreckage was

valueless and that the costs F re moval went to the

unjust enrichment of the defendant.

The government relied upon United Statés 1. Re-

public Steel Corp. (1960) 562 US. 182. as “teaching”

that the courts must formulate ae ‘Ss abpropri-

ate to effective enforce ment of the Rivers and: Har- |

bors Act.” FAG.” and that such reme aie are to. ke

sees ~.

ee ‘ie eve Mn thou, zh they rest.on infere hees. 295

F.2d, 5 ee =

The court of ©: neals carefully. considered that_

decision, and. =. 4d it’ entirely unrelated to the

>problem at hang. oS. The court also reviewed the

Act itself. and concluded:

“The sum total of the statutory, scheme,

excepting tts criminal” penalty previsions,

evidences that the forfeiture right accorded

to the Government to removeayrecks obstrue-

ting navigable waters is in the nature of an

mrenm right againet the removed Ves: el and:

notan in persone right against the vessel's

owner, 299 F.2d, 57.

Lastly, the court of appeals for the 3cd circuit

noted that the government’s contentions’ wert

plainly an effort'te ac h lieve judicial le gisl: LUTON.

dt Is the eoaente ot Congress +and not

—anat.of the courts tea ‘legislate and where.-

Congress has legislated in a particular field

expheitly and with de ‘finiteness as it has m

° the Rivers and*Harbors Act for the courts

tc- expand. the ‘periphery of the legislative

scheme. would ,be judicial trespass.". 295

F.2d, 55. Pe Atak MS RES

a TA

APPENDIX B-

COMPARATIVE ‘WRECK STATUTES

English Statutes ;

British harbors, rivers, and canals are putin the

care..of local Commissioners, undertakers, com- -

panies, and the like, each by separate local‘act. Ex-

amples of a few of these acts, concerning wreck re-

moval, are as follows

Dublin Port and Docks Act, 32 & 33 Vict. Chap ¢.

Sec. 96 : |

“the harbourmaster or - dockmaster

may remove any wreck or other obstruction

to the harbour, quays, docks or other ap-

proaches to the same; and also any floating ;

timber which impedes the navigation there-

of; and the expense of removing any such

wreek. obstruction or floating timber, ‘shall

he repaid by the owner of the same. and the

harbor-master or dockmaster may detain

such wreck, obstruction or floating timber,

for securing the expenses” ete.

Manchester Ship Canal Act, 1936, sec. 32

; 4

(1) Whenever any vesse! is sunk, stranded

or abandoned in part of — (a) any’ river

canal waterway navigable channel lock or

dock forming part of the harbour and port

of Manchester or of the undertaking .. . the

company may if they think fit causé the ves-

sel to be. raised or remove d «

(2) The company may recover from the

owner Of any such vessel all expenses incurred.

by the company under this section in connec-

SA

tion with that vessel... as a debt in any |

court of — jurisdiction. ee |

“(6). In this connection the word ‘owner’

in relation to any vessel sunk stranded or

abandoned as aforesaid means the owner of

that vessel at the time of the sinking stand-,

ing or abandonment thereof.” —

(copied | from The STONEDALE NO. 1,

- [1954] 2 All E.R. 170, 173)

These local acts are by no means identical, gne to

- another. Sheppey Glue .& Chemical Works, Ltd. v:

Conservators of the ewer remves, 25 LI. L. Rep.

a 33:

Howev er there is a ‘general statute of which these’

local bodies may take advantage

Harbours, Docks, and Piers Clauses Act, 1847, 10

& 11 Vict. c. 27, s. 56:

“The harbour-master may remove any

Ww reck or other obstruction to the harbour.

dock, or pier, or the approachés to the same,

-and also any floating timber’ which impedes

the navigation. thereof, and the expense of re-

moving any such wreck. obstruction, floating

timber shall be repaid by the owner of the

same,” ete. *

t

o

State Statutes

Code of Virginia, sec. 2011, as amended by Acts

1889-90, c. 371, p. 624:

“They (the board of harbor commission-

ers ) shall have the authority to cause the re- -

moval of any wharf, dock, w reck, or other ob-

struction to navigation, .. . at the expense of

the owner Gr party causing the obstruction:

>. 9A

Compare thé Laws of ih nia aesette. 1883, c.

260, confining in personam liability to willful’ or

malicious sinkings.

City (Ordinance

| Ordinances of the City of New York, art. c. 8, S.

oe .

“In .case’. . ..a vessel shall be. stranded,

sunken or wrecked 4nd be abandoned for 10.

days, the commissioner shall notify the owner

. and if the owner is not known to the

commissioner; or is not within the city, or |

shall fail to comply with the notiee, the com-

missioner shall cause such’ obstruction: or

. vessel to be removed, and the expense of such

‘removal shall be recoverable by action from the .

owtier and shall be a lien on the prep erty or

* vessel so removed until paid. .

(Copied from Petition of Highlands Nav.

Corporation, 29 F.2d, 38).

”

mo

J

ao APPENDIX C

< .&

Department of nme Army pamphlet 27- 164, Mili--

fary Reservations and Navigable Waters” (July

* 1961). "PP. 181, i \"

00.) REMOV AL.OF SUNKEN VESSELS. “The

Secretary of the Army is authorized, mn =

diseretion, te remove any sunken vessel. ¢

similar obstruction that ts maateas or

endangering the navigation, of any of. the

ni Wwigable waters of the United Sti ates, This

removal may~be, ordered either: upon aban- *

‘\ donment of the vessel by its owners or upon

| the expiration of more than thirty days ¢

whichever occurs sooner. The removal mad”

be accomplished without liability to the ati

ers of the-sunker eraft:). 9 i+ ‘go -

“Tn emergence: situatrons, the Seeretary uf

« the Army’ may.ordes the summary removal

oft sunken or eroundéd vessels obstructing

; the navigation of nayigable waters of the

United ot ites. The costs of sueh removals

rake: i lien agaist the vessel. "The vessel:

ay be sold to satisfy the lien i the owners

fail o refuse te reimburse the United States.

for the cost of removal Ww ithin thirty’ davs .

after notice.’ é ;

2)

;

“These provisions de not invest the, Seer.

tary of the Army with exe tusive, Jurisdiction

aver the removal.of obstruetions in the navie’

gable w raters of the United States. They do,

however, clothe him with the dirserétionary -

pow?) sities th aet or to jeave the matter n

the hands, of local atithirities When >the

12° Rivers arsi Harbor Appropriation Act ot ISYS: sex a ;

30 Stat. 1154. 35 U.S.C. 114s £1995

3) Rivers and Harb Appropriation Act ot (8@@ sec: 2t

30 Stat TSE 88 USC ts (ose

12A

Secretary exercises his discretion and takes

charge of a sunken vessel,-his jurisdiction 1s

exclusives’ ary

'“The owners if a‘sunken vessel, of course,

ave the primary right to remove it. Once

“bandonment has. been established, however,

the United States«may: apply such valuc’as

the sunken vessel may have to the payment

of the cost of remova¥' In removing an aban- -

doned sunken vessel trom the na vigable

waters of the United States, the United

States is limited in its recovery to the value’

of the vessel and its cargo. A claim for fur-

ther reimbursement against the owners may

not be made.”” |

:*

© ear e 5

HM .Hagan v "City: ct Richmend. 101 Va 728452 S.E . 38

(190,9) wets <i e

(5 Dig Ops JAG 1912.p 77s

ti JAG 158. 17 November 1933

~

138A

_ APPENDIX D.

_ Early Federal Statutes Mentioned

An act to improve the navigation of the Ohio and

Mississippi rivers, 4 Stat. 52, (152-4), was the begin-

'* ning step. Two days later Congress appropriated

money to deepen the channel leading into the harbor

of Presque Isle and to repair. Plymouth Beach, 4

Stat. 38 (1824).

“In 1826 $50,000 was appropriated to remove ob-

structions in thte river Savannah, below the city of

-Savannak, 4. Stat. 18,

:Other similar appropriaticns followed at each

session of Congress: The Rivers and Harbors ap-

propriation Act of July 4, 1886, 5 Stat. 129, made

the ‘irst express provision for a wreck © ;

“For removing the wreck in ‘the harbor -of

_°> . New Bedford, ten thousand dollars.”

‘The appropriation act of duly "25, 188AS, 1b Stat. -

174, supplied $100,000 to. be expended under the

direction of: the Secretary of War m the removal

of the wreck ofthe iron steamship “Scotland”, ther”

on the bar’outsidé of Sandy Hook: _ ~ ie

Tie Rivers and-Harbors-ACt of S72; 17 Stat. 375

furnished money te remove wrecks mn the Chituncte

river, Louisiana, and in.Ston® river, South Carolina:

- An aet directing the remeva! of obstructions trom

“the harbor of the Delaware breakwater, -1SS0, 21

Stat. 61, appear’ to be the last such specific appro

priation: : ae :

“That the Secretary. of War be, and he Is

-hereby, directed to cause to be removed trom

14A

the harbor at the’ Delaware'Breakwater and

the entrance thereto and in the main ship

channel of the Delaware Bay and ‘River sev-

‘eral vessels which were sunk in the, tear

eighteen’ hundred and ‘seventy-seven, and

‘now forming obstructions endangering the,

_ Safety of vessels entering said harbor after 3

reasonable notice to the owners of such ves- 0.

sels to remove the same, and .the sum of:

twenty-five ‘thousand: dollars, or so much

thereof as: mav be necessary, is hereby ap- - .

‘propriated for that purpose out of any money

4m the Treasury not otherwise appropriated.”

of

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APPENDIX E

om Report of. Hearings before the

W AR DEPARTMENT |

oD W ashington, February 12,-193

HON. S. W ALE ACE DEMP SEY.

Cheat man Comuiiittee on Rivers and Harbor:

- Hoyse of Representatives, W ashington, D.C

Dear Mr. Dempsey: Reference is made to your?”

letter of January 51, 1931, inclosing a copy of bill

H. R. 11512. with request for the views of thrs de-

partment as to the advisability ‘of. enact ng all o7

any of its provisions.

The purpose of the biil isto amend the provistons

of the Rivers and Harbors Act of March 3, 1899,

relating to the protection of navigable waters. It

is proposed:

1. To reduce'the minimum penelty preseribed by

the act for violation of its’ provisions from $500 to

$250.

2 To change the phraseology and enlarge the

scope of certain sections of the act

The act of 1599 makes-violations of its provisions

a misdemeanor punishable by a finesof not exceed-

ing $2,500 nor less than S00, To properly protect

navigable waters from obstructions: tt is often nec-.

essarv to institute prosecutions for minor infrac-

tions of the law. In such cases a caaboian has shown

that juries are hail to Convict as they feel that

ae 16A %

_ thes statutory penalty rs out ot proportion to the

gravity of the offense. [tf isnot improbable that a

lesser penalty would conduce to a more effective

enforcement of. the law, No objection is seen, there-

“fore, to the enactment of the proposed amendment

reduc Ing the minimum penalty from S500 to $250

_ The- department, however, is not prepared to

sanettorthe other amendments proposed ino the

bill © The present= fav ois comprehensive and: has.

proven reasonably effective both as a preventive

and remedial measure During the long period: it

fas been in existence its provisions have beer the

“subject of judiceia! mterpretation and decision, and

the public has become ae quiinted with its remuire. |

ments and meaning Amendments to a ‘statute ot

‘long standing, established vahdity and settled in--

terpretation, changing its phraseology: and enlarg-

Ing Its scope to meltide things of. doubtful’ pertin:

eney, may lead to confuston and impair the ferce

of the statute. They should not be adopted until the

fullest, investigation tas demonstrated their desir.

sebility. Uf dleerstatton creating new offenses of cor-

" reeting of the abuses is needed to supplement the’

existing law it should preferabiv take the form 0:

a separate and independent measure |

After carer! consideration of the statements of

the “proponents and advoeates of th proposed -

amendments, this department ro mot comvineed that

I, Would be.wise or expediént to enaet any of the

Provisions of the bill eXcept those relaying to re-

duction ol penalty.

Sincerely yours, |

a ~ Patric? J) HURLES

Secretary of War -

Go | | MA

APPENDIX. F

Opinion of Judge-Advocate General |

Concerning Wreck of the S.S. ‘‘Lavisiana."'

. (18824) - : ; S

*~ WAR DEPARTMENT, |

Office of the Judge-Advocate Genera!

Washington

=e November 14, 1905

To the’

| Secretary of War. .

Sir oo ee

. These papers relate to the wreck of the’S. §

‘Lousiana, owned by the Southern Paeifte Rau-

road Co,. which sank at ithe wharves of that com-

pany at New Orleans, Louisiana, and slid out some

distance. nto the stream where it stuck, so taat, 1

Its present position, it ts alleged to be a menace to

navigation

It appe: irs that both ere railway company and the

insurer of ‘the vessel have abandoned the wreck as

«© total loss; and application is made by the railway

gene for the removal of the same under the Act

£ Maia’ 3. 1SOo (30 Stats. 1454). There is sub-

ee with the application-a,.copy of ant instrument a

by which the Southern Pacific Company “for itself

as-well as on behalf of its linderwriters, to whom

anv mterest mm the same have passed,” states that

it “formally abandons to the United States the:

wreck of said steamer, and consents that the United ,

States Engineers remove the same from where sit

now les. under the procedure taken by the United

' States in similar cases ”

In passing ttomay. be noted that While the com

py a 18A

pany thus ‘formally abahdons the vessel to the

United States‘for removal, under the statute which”

would give the Government fhe property therein, it

7 - o eo o «2 z . -

appears from these papers that neither the com-

pany nor the underwriters would relinquish their

claim to the vessel to a private firm—(the Jahneke |

Navigation and Improvement Company) which of-

fered to remove the wreck without compensation

other, than that it should become the property of

the firm. , ng A > sae

It is claimed_ bv the railway company that: the

wreck is a Menace to navigation so that it becomes

the duty of the Secretary of War to have it re-

maved, while the local engineer Officer’ (Captain

J. F. MeIndoe), in accompanying report dated Octo-

ber 51,:1905, says: "is a

“The Superintendent of the Board of Com-

missioners of the Port of New Orleans states

that no. river steambbats, are permitted to

land in that Vicinity below Conti Street (see

blue print, accompanying my report of June

1°1905), a distance of-over a qyarter of 4

mile along the wharf front from the fore-

mast of the wreck.

Considering the width and great depth of

the river and the geheral configuration of

the wharf line between Canal and St. Ann

Streets, it is reasonable to beheve that a

steamboat can be handled without danger of

colliding: with the wreck, which lies over a

quarter of a mile below the landing and so

Near the wharf line. AS a matter of fact

steamboats making or departing. from the

landing referred to would habitually be near

the middle of the river When opposite the

position of the Wreck,‘even if the wreck were

_. not there. There are many places-in the

, Mississippi River wher’ steambeats in leav-

a

y . 0

ear 194 ane

ing landings have.a’ much shorter distance to

get straightened out 1m, in order to avoid bars

"and snags, and where the current is stronger

than. in New Or leans Harbor.

“The only accident die to the wreck is. that

of the. steamboat J. ¥. TRUDEAU which oc-

curred April 10, 1905, three days after the

sinking of the*Louisiana’ =~ . °

Examination of the document ‘Protest °

Extended’ develops the fact that this boat

had successfully left her landing and was.

proceeding upthe river when she be came UR-

manage sie and Was Carried by “wind and

current against the wreck and damaged

This does aot prove that the Wreck is a men-

ace t® navigation, for had the ‘Trudeau’ not

struck the ‘Louisiana, she wauld probably

have struck the wharf and might have been

more seriously damage a or even sunk,

“Relative to the statements in Memorat-

‘dum as to ‘striking an old wreck and as to

the ‘Loutsiana’ being ‘directiv in-the fairway

of the river, } would peenecteitts invite ref-

erence to my report dated June 1, 1905.

“Nothing has developed co cause -me to!

iter the opinion 1 expressed: inv-my reports of

hon 20, April 22, May 3 and June 1, 1905,”

viz: that: the wreck, of thy omiguiia does

not obstruct or ond;

tion « if the Missi

menace only to [vessels arriving at and: de-

parting from the Southern Pacific wharves

iger the general naviga-

at St. Ann. street and adjacent wharves. It

is mv fixed opinion that. this wreck can not

be considered such an obstruction as is con-

templated by the law for removal of .wrecks

by the United States. It is an obstruction te

the wharves of the Southern Pacific Co. an d

all work in connection with its removal.

mippl River and that its a

20A a es

should be done without any expense to the |

United States.”

These views are concurred in by Dotan Sears,

the Division Engineer, and by the Chief of Engi-

neers, U.S. Army, who expresses the opinion that .

the Wreck is not one which it is the duty of the De-

partment to remove; but that ‘tas it is chiefly an

obstruction to fhe approach to the wharves of ihe

Southern Pacific Company, it would seem that, if .

‘its removal is required at all, the expense thereof

shéuld be borne by the said company.” :

Under these.facts the opinion of this office is

desired: first, as to whose duty it is to clear this °

waterway; and, second, whether we can hold the

railway company or the underwriter for the same,

or whether the Government will have to do it,

In regard. to the first question, it is to be observed

that in the opinion of the Engineer Department the

wreck is not a menace to general navigation for the

reesons stated above; but is an obstruction to the

approach to the wharves of the railway company

that owned the vessel; and further that the position

of the wreck appears to be such that it does not

even preclude access to the w ‘harves of the railway

company, although it requires greater care in the

use of the same. I concur in the views of the Chief

of Engineers that if is not incumbent upon the War

‘Department to cause every sunken vessel to be re-

moved; but that the wreck must be im some navi-

gable channel Where it would, to use the language

of the statute, “stop, seriously interfere with, or .

specially endanger navigation.” The determination

of tht™matter is committed by the. statute to the

“Secretary of War, or any agent of the United ©

States to whom the Secretary may delegate proper

21A

.

ailthority. * It follows, therefore, .that if the Secre-

tary of War, in the light‘of the views xpressed by

the Engineer Department, should be of opinion that

the wreck is not such a me nace te navigation as the

statute contemplates, he is under no duty to ‘take

any steps regarding its remowal.

The setcnd question is aS: to Whether the railw: av

company or the underwriter can be required to re-

move the wreck: in other words, whether either

party is under a legal:dutv which can be enforced

b¥ or at the instance. of the W ar [Jepartment.

in my opinion the statute does not impose such a

duty upon the owner or underwriter of the vessel.

So long as the vessel is not abandoned, it makes it

the duty of the owner to use due precaution to mark

, its location, to prevent its being .a, menace to navi-

gation; but it recognizes the right. to abandon the

wreck without further habilitv on account of the

same. In the event of such abandonment the wreck,

if such a menace to navigation as the statute con-

templates, Should be removed under the provisions .

of the statute.

Under the facts, as the Vv appear from these papers,

‘T am.of opinion that the Secretary of War mav,

‘

properly, determine that the wreck is not suc h aon

as itcis incumbent upon the Department to re-

move under the statute,in quest’on: so that, if its

removal is required in the interest of the applicant,

the expense thereof. shouldbe borne by it .

Very Fespectfully:

be

(GEO. iB. DAVIS,

5 . Judge-Advocate General.

Nov. 15, 1905

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