Appendix — Bethlehem Steel Co. v. United States

Supreme Court brief1967

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UNITED STATES COURT OF APPEALS |

‘FOR THE FOURTH CIRCUIT

No. 9867.

United States of America,

* Appellee,

versus |

Moran Towing & Transportation

Company, Incorporated,

. : '. * » Appellant.

No. 9868.

United States of America, | \

Appellee,

versus. 3

Bethlehem Steel Company,

Appellant.

APPEALS FROM THE-Unitep States District Court FoR

THE District oF MaryLAND, AT BALTIMORE. Roszet C.

, THOMSEN, District JUDGE.

(Argued ‘May 5, 1965. Decided February 10, 1967.)

Before HayNswortTH, Chief Judge, and ecitannn and

| ee Circuit Judges.

ny tty AE RR RNIN OP aS

David R. Owen (William R. Dorsey, III, and Semmes,

Bowen & Semmes on brief). for Appellant in, No. 9868,

- and Southgate L. Morison (Ober, Williams & Grimes .

_ on brief) for Appellant in No. 9867, and Martin Jacobs, —

Attorney, Department of Justice, (John W. Douglas,

Assistant Attorucy General, and Alan S. . Rosenthal,

Attorney, bianco of Justice, on brief) for Appellee. _

Havwswoars, ‘Chief Judge:

The controversy involves the duty ad Snancial burden

of removal of the broken hulk of what once was a floating

_ dry dock. The United States contends that the financial —

‘burden rests upon Bethléhem Steel Company, the owner, |

‘and Moran Towing & Transportation Company, Incor-

porated, whose tugs had the dock in tow, because, under the -

relevant “statutes, the dry dock was not a vessel or craft,

and, even if it swas, that the burden is cast upon the owner

' and the tug owner,, because the dry dock was intentionally ~

grounded, as the Distfict Court found, or, at least, the

grounding occurred as a result _of negligence. The defend-

-ants, on the other hand, contend that the floating dry ‘dock: :

was a vessel or craft within the meaning of the relevant

statutes, that fhe grounding was not intentional or even the .

result of negligence, but, that if there were fault on their |

part, the owner’s abaiidonment casts the duty and financial

burden of removal upon the United States, except insofar

as it could: reimburse itself from the salvage.

. The District Court held for the United. States upon the

"ground that the. floating dry dock was neither a- vessel

nor a craft, and, alternatively, that, if it was, the ground-

---ing’ was intentional. On appeal the United States urges as. _

. additional support that even if not intentional the ground- _

ing was negligent and this defeats the owner's | right of |

abandonment. We conclude that the judgment cannot be

supported on either ground or upon the alternative sup-

porting ground advanced on appeal by the United States.

The floating dry dock was of wooden construction. It -

was composed of six trussed sections numbered 1, 2, 3, 4, 5

and 72 It had an overall length of 360 feet, a width: of 100.

feet, and it. was 45 feet —- It Ahad a capacity of 9400

tons.

Bethlehem had purchased the dock in 1930, at which

time it was approximately. ten years old. It was then towed

section by section from Charleston, South Carolina to

Bethlehem’s Key Highway Yard in Baltimore, Maryland,

where it was in substantially continuous use as a floating

_ dry dock through October 4, 1962, only thirteen days be-

fore the tow commenced which resulted in its .wreckage.

Earlier, Bethlehem had decided to dispose of the dry —

dock, which was thén, apparently, in good condition and

regular use. Bethlehem had closed some of its yards in New. .

_ York Harbor and had decided to replace the 9400-ton

floating dry dock with another of larger capacity made

surplus by the New York closings. The replacement dock

-was one of 20,000-ton capacity. That decision: made, Beth- ~

lehem then turned to the disposition of the 9400-ton dock.

Bethlehem considered beaching the dry dock and burn-

ing it, but the landowners it contacted were unwilling to

have their properties used for such a purpose. An inquiry

was addressed to the Maryland Port Authority which « de-

clined to suggest approval of a sinking anywhere in Ches-

apeake Bay, but, after suggesting the possibility of beach-

ing and burning it,’ mentioned that ‘it might ‘be sunk at

1 At an earlier time there had been a seventh section seittend six in 7

tween sections 5 and 7.

' 2 Beaching and burning, it eee unobjectionable, provided the total hulk.

was burned, that is its underwater as well as its above water Portions. This

. seemed impractical.

sea. Bethlehem then contacted the Army- oo from

‘whom they learned that the engineers had no rules pro-

hibiting the scuttling of the dry dock at sea at or beyond

the thousand fathom curve, and that, if sunk there, the

Navy had no interest and the Coast Guard no jurisdiction.

Bethlehem then decided to have the dry dock towed out

to sea and sunk beyond the thousand fathom curve. It en-

tered into a contract with Moran Towing & —

lg Company, Incorporated to take it. to sea.

On October -17, 1962, only thirteen days after the last

day on which the dock had been in use,-two of Moran’s

‘tugs took it under tow. They departed Bethlehem’s Key

Highway Yard at approximately 6:45 P.M., and, twenty

minutes after midnight, the flotilla hove to near Chesapeake

Bay Bridge to await further ‘information about a storm

reported offthe Carolina Coast. The weather was good,

the sea.calm, and the tide was only three quarters of a

knot. The flotilla steamed into the tide at three-quarters

_of a knot, so that-it had no motion over the ground. |

. At 5:30 o’clock on the morning of October 18 the dock

was riding well and’ normally, but at 5:45 there. was an

obvious list at the forward port corner of the forward sec-

tion, that being No. 7. The foremost port compartment of

the No. 7 pontoon was found to be filling rapidly. Pumps,

provided for that purpose, were placed in operation in No.

5 pontoon, but it, too, began to fill about 7200 o'clock.

Meanwhile, the Captain of the flotilla decided that pru-

dence required a return to the Key Highway Yard. He

shifted the lead tug to the after end of the dock, and at

6:50 o’clock in the morning began a return trip up the

Bay. This placed the pontoon sections which were taking

on water: at the starboard after end of the ‘return move-

ment of the flotilla.

In Brewerton Channel, an entrance to Baltimore Harbor,

the ne starboard end of the a dock began to hit ii.

tom. By this time representatives of Bethlehem, who had

been notified, had come out to meet the flotilla and were

present. Aftér radio-telephone consultation with another

Bethlehem official at Key Highway Yard, which is in the

inner harbor, it was decided to turn out of the channel .

toward Bethlehem’s Sparrows Point steel plant. It then

appeared most unlikely that the sinking dry dock could be

successfully. towed to the Key Highway Yard, and Spar-

rows Point, at the entrance to Baltimore Binrbor, was im-

mediately at hand.

The dry dock finally grounded in 21 feet of water off

Sparrows Point some 250 yards north of Brewerton Chan-.

nel, but well short of land controlled "y Bethlehem. The _

tugs could move it no farther.

Though the wreck did not menace traffic in any dredged

channel, it was in waters of Baltimore Harbor which are

‘technically navigable and readily usable by vessels. of shal-

low draft and smiall craft. The United States regarded the

wreck asa menace to navigation and sought its removal. It

declined to accept its abandonment, which Bethichem

_ tendered shortly after the foundering.

Since the oral argument, the Court has been itiaeas

_ that the dry dock has been removed by the United States

at a cost of $163,000. |

It may be helpful at the outset to take a brief onsen |

look at the relevant statutes, all of ‘which are derived from

the Rivers and Harbors Act of 1899.

Title 33 U.S.C.A. §:401, derived from § 9 of the Rivers

and Harbors Act of 1899, prohibits the construction of ‘

bridges, dams, dikes and causeways in or over navigable

waters without prior approval of the Chief of Engineers

and the Secretary of the Army.

33 U.S.C.A. § 403, derived from § 10 of the Act, the

full text of which is set forth in the margin,’ prohibits the |

creation of any obstruction to the navigable capacity of

waters of the United States unless authorized by the Con-

gress. The section déclares that the building or the com-: |

mencement of the building of any wharf, pier, dolphin,. ”

boom, weir, breakwater, bulkhead, or jetty shall not be

lawful unless done pursuant to plans recommended by the

Army. It also declares it shall not be lawful to excavate,

fill or alter the course, condition or capacity ‘of any port or

similarly enclosed waters or of a canal or the channel of any ©

navigable .waters of the United States, unless the work

has been authorized by the Secretary of the Army upon

' the recommendation of the Chief of Engineers. .

_Section 404, derived from § 11 of the Act, authorizes

the Secretary of the’ Army to establish harbor lines and

prohibits the extension of piers, wharves, bulkheads, or

other works or deposits beyond the harbor lines, except

pursuant to regulations prescribed by the Secretary of the

Army. ? |

Section 406, derived from § 12 of the Act, provides a

_" for the wrongful construction of bridges, piers and

-8The cr creation of any obstruction not ¢ affirmatively authorized by Con-

gress, to the navigable capacity of any of the waters of the. United States is

_, prohibited; and it shall not be lawful to build or commence the building of

any’ wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other

structures in any port, roadstead, haven, harbor, canal, navigable river, or other

water of: the United States, outside established harbor lines, or where no

harbor lines have been established, except on plans- recommended by the

Chief of Engineers and authorized by the Secretary of the Army; and it

shall not be lawful to excavate or fill, or in any manner to alter or modify

the course, location, condition, or capacity of, any port, roadstead, haven,

harbor, canal, lake, harbor of refuge, or inclosure within the limits of any

‘ - breakwater, or of the channel of any navigable water of the United States,

* wnless the work has been recommended by the Chief of Engineers and au-

thorized by ‘the Secretary of the Army prior to beginning the same.”

similar structures and provides for their removal. It de-

clares any violation of §§ 401, 403 or 404 shall be a mis-.

. demeanor and specifically authorizes district courts to issue

injunctions requiring the removal of any structure, or part

of a-structure, erected if violation of those sections. —

Section 409 of Title 33, which was § 15 of the Act, the

text of which is set forth in full in the margin,‘ relates to

"the obstruction of navigable waters by vessels or other craft.

It provides that the anchorage of vessels or other craft in

‘a navigable channel in such a way as to hinder-the passage

of other vessels or craft is. unlawful. It also makes it un-

lawful voluntarily or carelessly to sink or permit ‘the sink-

ing of a vessel or other craft in a navigable channel or t6

‘float loose logs or sack rafts in streams used by steamboats

in such a manher as to obstruct the navigation of vessels.

It then provides that whenever .a vessel, a raft, or other °

craft is wrecked and sunk in a navigable channel, acciden-

tally or-otherwise, the owner must immediately mark the

wreck and‘ promptly commence its removal. -F ailure to.

commence the immediate removal of the wreck shall be

*“It shall not ‘be lawful to tie up or anchor vessels or other craft: in

navigable channels in such a manner as to prevent or obstruct the passage

_ Of other vessels or craft; or to’ voluntarily or carelessly sink, or permit or

_ cause to be sunk, vessels‘ or other craft in navigable channels; or to float

loose timber and logs, or to float what is known as ‘sack rafts of timber and

; logs’ in streams or channels actually navigated by steamboats in such manner

as to obstruct, impede, or endanger navigation. And 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 im-

mediately mark it with a buoy or. beacon during the day and a lighted

lantern at. night, Gnd to maintain such marks until the sunken craft is re-

moved or abandoned, and the’ .neglect or failure of the said owner so to do

shall be unlawful; and 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 abandon-

ment of such craft, and subject the same to removal by the United States as’

provided for in sections 411-416, 418, and 502-of this title.” .

. Pe

“considered an abandonment: and subject the. craft to re-

moval by the United States.

Section 411, derived from a portion of § 16 of the Act,

‘provides that any violation of § 409, or certain other sec-

_ tions with which ‘we are not now concerned, shall be a mis-

demeanor. A violator is subject to a fine of not less than.

$500 nor more than $2500. In- what is now § 412 of Title

33, -§ 16 of the Act further provided that any willful ob-

struction of the channel of any waterway in the manner

contemplated in § 409 by any master, pilot or engineer

shall also constitute a ‘violation of other sections: of the

Act, including § 403, and ‘shall result in the revocation or

* suspension of his license.

Sections 414 and 415, which were e respectively, §§ 19

and 20 of the’ Act® authorize removal by the United States

. 5Section 19, 33 U.S.C.A. § 414 provides:

“Whenever the navigation of any river lake, harbor, sound, bay, canal, or |

other navigable waters of the United States shall be obstructed or endangered

by any sunken vessel, boat, water ctaft, raft, or other similar obstruction, and

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

the abantionment 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 estab-

lished in a less time, to be given by publicatiori, addressed ‘To whom it may

concern,’ in a newspaper 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 solicited by public advertisement giving reasonable

notice:of not less. than ten days, for the removal of such obstruction as soon

as ‘possible after Whe expiration~ of the above specified thirty days’ notice, in

case it has not in the meantime been %o removed, these’ proposals and con-

tracts, at his discretion, to be conditioned that ouch vessel, boat, water craft,

raft, or other obstruction, and all cargo and property contained therein, shall

become the property of the contractor, and the contract shall be awarded

to the bidder making the proposition most advantageous to the United States:

Provided further, That any money received from the sale of any such wreck,

. ¢

of sunken craft which have been abandoned or which create’ —-

an emergency condition. Section’ 414 provides that when

navigable waters of the United States are “obstructed or

endangered” by “any sunken vessel, boat, water craft, raft,

or other similar obstruction,” the craft, if abandoned, shall

be subject to removal or other disposition by the Secretary '

of the Army without liability for any damage to the own-

ers. The Secretary may, in his discretion, so condition con-

tracts for removal that the craft and cargo so removed

shall become property of the contractor. The section also

provides that any money realized by the United States from _

the sale or removal shall go into the treasury. Section 415

gives the Secretary authority under emergency to ‘sum-

marily remove a sunken vessel obstructing navigation: be-

or from any contractor for the removal of wrecks, under this paragraph shall

be covered into the Treasury of the United States.” ;

Section 20, 33 U.S.C.A. § 415 provides.

“Under emergency, in the case of any vessel, boat, water craft, or raft, or

other similar obstruction, ‘sinking or grounding, or being unnecessarily de-

layed in any Government canal or lock, or in any navigable waters men-

tioned in section 414 of this title, in such manner as to stop, seriously inter-

fere with, or specially endanger navigation, in the opinion of the Secretary of

* ‘the Army, or any agent of the United States to whom the Secretary may

delegate proper authority, the Secretary of the Army or any such agent

shall have the right to take immediate possession of such boat, vessel, or’

other water craft, or raft, so far as to remove of to destroy it ‘and to clear

immediately the canal, lock, or navigable waters aforesaid of the obstruction

thereby caused, using his best judgment to prevent any unnecessary injury;

and no one shall interfere with or Prevent such removal or destruction:

Provided, That the officer or agent charged with the removal or destruction

of an obstruction under this section may in his diseretion give notice in writ-

ing to the ownérs of any such obstruction: requiring them to remove: And

provided further, That the expense of removing any such obstruction as

aforesaid shall be a charge against such craft and cargo; and if the owners

thereof fail or refuse to reimburse the United States for such expense

within, thirty days after notification, then the officer or agent aforesaid may

sell the craft or cargo, or any part thereof that may not have been destroyed

in removal, and the proceeds of such sale shall be covered into the Treasury .

of the United States.” as Rae

; ‘7 co.

10°

foré abandonment has been established and provides that

the expense of such removal shall be a charge against the:

‘vessel and its cargo. Should the owner of the vessel fail to

reimburse the United States for the expense of removal, the

_ vessel and its cargo may be sold and the proceeds covered

into the aaa

Was THE Dry Dock A VESSEL OR CRAFT WITHIN THE

—MEANING OF THE WrecK Acr?

It is readily apparent’ that the Rivers and Harbors Act

of 1899 was concerned with two, largely if not wholly, mu-

tually exclusive classifications. In §§ 401 -and 403, there

- are prohibitions against the construction of bridges, dams,

- dikes, causeways, walls, piers, dolphins, booms, weirs, break-

waters, bulkheads and jetties without the prior approval of

the Chief of Engineers and the Secretary of the Army, if

they extend into: or over: navigable waters. Excavating,

‘filling or altering the course or capacity of any port, canal

or channel is similarly prohibited, unless authorized, and

the prohibitions of § 403 are introduced by a general pro-

hibition of any. obstruction to the navigable capacity of

‘waters without congressional authorization. These prohibi-

tions are directed, generally, to structures and the product

of construction work deliberately erected or created and

intruding into or over navigable waters. The primary rem-

edy provided for the:removal of any such unauthorized

structure is a mandatory injunction requiring its creator

to remove the structure or obstruction. The removal, of

course, is at the expense of the offender.

In contrast, §§ 409, 411, 412, 414 and 415, collectively

known as the Wreck Act, apply to obstructions in navigable

waters created by vessels or other water craft anchored,

moored or sunk in navigable waters. Section 409 contains ©

a prohibition agairist the voluntary or careless sinking of

a vessel in a channel, and § 412 makes a willful obstruction -

by a master, pilot or engineer of agehannel in violation of .

§ 409 a violation also of § 403, with a resulting revocation

or suspension of his license.

With respect to sunken vessels, Senne §§ 409, 414 and

415 clearly recognize the right of. abandonment. by the —

_ owner, and they cast upon the United States the duty and

financial burden of removal of an. abandoned wreck, except

insofar as the United States may reimburse itself from the

salvage. The duty of the owner of a foundered vessel is

' limited to the maintenance of appropriate marking of the

wreck until it is either removed or abandoned. After aban-.

dortment, even the duty of maintaining adequate marking —

of the wreck for the protection of other vessels is cast upon ‘

the United States.

'. It is necessary initially, hie to ia sileiiiace this

dry dock was “a vessel, raft or other craft” within the mean-

ing of the Wreck Act so as to make available to the owner

the statutory right of abandonment. __

In other contexts, a floating dry dock in service, per- .

manently moored to the’shore, has been held not to be a

“vessel” for purposes of salvage,* or for limitation of lia-

bility.’ Shipyard workers upon such a dry dock are not the

members of a crew of a vessel in navigation.

The dry dock in service, permanently moored to the

land, has most of the attributes of such an extension of the . -

| land asa wharf ora dock, but it does not retain: oo char-

' © Cope v. Vallette Drydock Co., 119 U.S. 625.

7 Berton v. Tietjen & Lang Dry Dock Co., D.N.J., 219 Fed. 763.

® Bernado v. Bethlehem Steel Company, 2 Cir., 314 F. 2d 604; DeMartino

v. ‘Sethichem Steel Company, 1 Cir, 164 F. 2d 177.

os .

acter when it has been severed from its attachments to the

land and when, under tow, it is moving over navigable

waters equipped, as this one was, with a vessel’s ——"

lights.

We have held several strange craft to be vessels. A float-

‘, ing derrick engaged in pouring concrete for a bridge is

one.” So is a barge moored behind piles on a river bank

and serving as a platform:for coal cleaning machinery.”

‘We have held that a floating pile driver is a -vessel."-Fhere—

are similar holdings elsewhere. Even an offshore drilling

platform resting on legs extending to the bottom of the

“There are statutory definitions of a “vessel. In 1 U.S.C.A.

§3 afid 33 U.S.C.A. § 144 (c) (i) (except a seaplane),

it is defined as “every description’ of water craft used or

capable of being used as a means of transportation on .

water.” As indicated above, the definition is held to extend

to relatively permanent or stationary structures which are

.* in no sense, when serving their primary function, engaged

‘\\ in transportation. Their capability, though more theoret-

jical than practical, brings them within the definition. ;

- “Fhis floating dry-dock was'‘as capable of use as a means

__ of transportation on water as other specialized craft which

have been held to be vessels. During much of the voyage.

we have described, it had a crewman aboard. It carried

portable | pumps and navigation lights. It was not designed

to carry cargo, but it had been regularly employed in lift-

_ing and supporting ocean-going vessels, and there is no rea-_

son to suppose that, if occasion arose, it could not have been .

® Suinmerlin v. Massman Const. Co., 4 Cir., 199 F.2d 715.

10 Jeffrey v. Henderson Bros., 4 Cir., 193 F. 2d 589.

11 Leary Const. Co. v. Matson, 4 Cir., 272 Fed. 461. . patie,

32 Offshore Company v. Robison, 5 Cir., 266 F. 2d 769.

afé«?

13, te

wid under: tow, for the movement of objects from one

place to another. |

- Moreover, in the Wreck Act, itself, ‘there is every indi- :

cation of a congressional intention that the Act not be nar-

rowly applied to conventional vessels only. It expressly ap-

" . plies to vessels, rafts and other craft. Sections 414 and 415.

refer repeatedly to any “sunken vessel, boat, water craft,

raft or other similar obstruction.” These should not be

- read as mere : redundancies, but the abandonment principle-

with its public’ burden of clearance and removal should

apply to any obstruction similar, to that of a sunken vessel.

They encompass, generally, all objects designed and in-

tended to float on navigable waters which, when sunk,

would create an ‘obstruction’ similar to that of a sunken

vessel.

A raft of logs i is certainly not a conventional vessel, and _

it has no greater capability for use as a means of transpor-

tation than did this dry dock,” but a raft of logs is expressly .

within the reach of the Wreck Act.. ‘

We conclude that this floating dry dock while unmoored

and .under tow was within the Wreck Act, too. When §it

foundered while under tow, it creatéd an obstruction of

= genus of : sunken vessels, rafts, craft and similar obstruc-

The obstruction is quite unlike the bridges and high-

win the piers and the jetties to which §§ 401 and 403

are directed.

A recent decision of the United States ee: of Customs

_-and Patent Appeals in the case of United States v. Bethle-

f 13 A raft of logs.has been held to be a vessel, however, The Mary, S.D.Ala,

123 Fed. 609; United States v.° Marthinson, EDS.C, 58 Fed. 765; and

Seabrook v. Raft of Railroad Cross Ties, D.S.C., 40 Fed, 596.

- ™Surely, as Bethlehem points out, after the foundering of the dry dock,

Bethlehem would not be relieved of its duty under § 409° of marking the

wreck because it was not a vessel, raft or other craft.

hem Steel Company ...... F.2d ...... (decided August

4, 1966) doés not persuade us to the contrary. cr

The Court of Customs and-Patent Appeals was: there

concerned with the question of whether certain ship “mid-

“ bodies” were dutiable. It held that they were because they

were not vessels within the statutory definition of the term.

In that case it appeared’ that conversion of an old T-2

or T-3 tanker into a large ore carrier could be effected by —

_’ removing the bow and stern-sections of the tanker from

' the midsection, and replacing the old midsectiqn with a

new, much longer one. Some of the new midsectibns were .

constructed in European yards. Equipped with a temporary

bow section and a reinforced stern, each was towed across:

the. Atlantic Ocean to an American yard’ where the old

_ tanker bow and stern séctions were to replace the temporary

_ arrangements. effected in Europe. During the ocean cross-

“ing, each of these “midbodies” had sleeping accommoda-

_ tions for a crew of eight, each of whom had signed on as

a seaman. ‘There were generators for electric power, and

light, heat, power, food and radio facilities were. all avail-

--able on each “‘midbody.” Each, of course, carried naviga-

tional lights and signals.

~ Vessels, the carriers of dutible commiodities, have tradi-

oes tionally bgen, themselves, exempt from duty. The importers

- claimed the traditional; implicit exemption for the “mid-

body.” The Customs Court, Second Division, sustained

- their protest, but the Court of ‘Gustoms ‘and Patent Ap-

has peals reversed, Placing its decision upon the ground that

_ the “midbodies” did not fall within the statutory defini-

tion of a vessel, despite the equipment and crew each car-_

" ried and despite thie further fact that it was said to be cap-

able in its then condition of carrying 14,000 tons of cement.

A very different consideration affected the judgment of

the Court ‘of Customs and Patent Appeals in deciding

= - z .

me = SA wr oo PEEL OR PEA SARE TAD tan ity 0

whether or not the “midbodies” were subject to duty. The

exemption was not a statutory one, and the Court was ton-

cerned with the protection of American industry, ship-

.yards and employees. It was conscious of the fact that if.

the component parts had been imported from Europe, each

would have been subject to duty, and there may have

been some reason for ‘treating sub-assemblies, even sub-

assemblies as complete and extensive as the “midbodies,”

as dutiable also. The holding that they were ‘not vessels

within the meaning of the traditional exemption from the

customs acts, though grounded upon the statutory defini-

tion of vessels, does not persuade us that such “midbodies” -

are not vessels, rafts or other craft within the meaning of -

_ the Wreck Act. We think that they clearly were and that,

. ~ sunk in a navigable channel, one of them would constitute

an obstruction, in all respects, similar to the wreck of a.

vessel complete with permarient bow and stern, which the

owner would be required by § 409 to mark-and ‘which

is subject to abandonment by the owner. That brings it .

within the literal language of the Wreck Act.

Was THE SINKING oF THE Dry Dock INTENTIONAL?

'. The District Court indicated that even if the dry dock

was a vessel within the meaning of the Wreck Act, § 409

would not extend the right of abandonnient to an owner

who intentionally sank his vessel. It found that, while the

- original intention was not to sink the dry dock in the har-

bor, after an emergency arose as a result of Bethlehem’s

negligence, Bethlehem and Moran “deliberately decided to

sink the dock in the harbor.” |

Under a predecessor of §.10 of the Rivers and Harbors. -

Act of 1899, it was held that a ship intentionally scuttled

by its owners created an obstruction which the owner could |

be compelled to remove at its expense.” |

In Hall, after fire had broken out in a ship dina gotten

ae beyond control so that the hull was certain to be lost, the

_ ship was intentionally sunk in a harbor in order to save ©

the rigging from the fire and to permit its salvage by the

owner. It was held that ‘such an intentionally created ob-

struction was a violation of § 10 of the Rivers and Harbors

Act of 1890, substantially comparable to § 10 of the Act

of 1899, which is now § 403. This suggests that § 15 of the

Wreck Act,” with its exoneration(of the owner, except for

the in rem liability of the sunken vessel and its cargo, should

not be extended for the benefit of the owner when the

sinking was the deliberate and: intended purpose of the

owner in furtherance of his financial interest. The fact that

§ 412 makes a willful obstruction of a channel,-in violation

of § 409, also a violation of § 403 7 lend. some support |

to the suggestion. |

The present case is far from iat incl. however.

There was a general original purpose, of course, to sink

the dry dock. This purpose arose after it had been found

impossible to dispose of the dry dock in the Bay, when

no riparian owner would permit use of his land for the

purpose of burning the dock and when burning was made .

impractical by the requirement that its underwater portion —

~ be consumed by fire as well as its above water portion. It

_ had been suggested that the dry dock could be sunk beyond ~

the thousand fathom curve, approximately 85 miles at sea,

and Bethlehem had obtained official clearance for ‘that ven-

ture, contracting to pay Moran a fee of $10,000 for the

15 United States v, Hall, 1 Cir. 63 -F.2d 472; see also, In Re Eastern

_ Transportation Co., D.Md., 102 ‘F-Supp. 913, aff'd sub nom Ottenheimer v. .

Whitaker, 4 Cir., 198 F.2d 289.°*

16 33 U.S.C.A. § 409.

towage. Clearly, at the outset, however, no one intended

to sink the dry dock in the Bay or. in Baltimore. Harbor,

and when sections No. 5 and 7 began to take on water, the

purpose of the turn back to Bethlehem’s Key Highway

Yard was to avoid the possibility of an unintentional sink-

_ing in the Bay or the harbor. It was then thought that the

flotilla could make the return trip to the Key Highway.

-Yard, but when the stern starboard section of the dock be-

gan to hit bottom in Brewerton Channel, it appeared im-

possible to achieve the Key Highway Yard destination.

It was then that the flotilla turned from the channel and ~—

headed toward Bethlehem’s Sparrows Point steel plant.

With the dock riding so low at the stern, there may. have

seemed little chance’ that it could reach waters .actually °

controlled by Bethlehem, and it was then known that the

dock was ina sinking condition, but the turn out of the

channel was for the purpose of minimization of prospec-

tive harm. Sharp criticism would justifiably have been

levelled at Bethlehem and Moran if they had permitted

the dry dock to founder in and obstruct one of the main .

ship channels in’ Baltimore Harbor. What was done was |

dictated by prudence and was accompanied by a strenuous

effort to avoid the creation of an | extremely hazardous and

‘major obstruction.

Indeed, the District Court found that the initial decision

to turn back to Key Highway Yard and the later decision

- to turn out of Brewerton Channel were both reasonable

choices of unpleasant alt€rnatives. Under those circum-

stances, we cannot accept the ultimate conclusion that there

was a. deliberate decision to sink the dock in the harbor.

The master of a-sinking vessel who does all he can to. ma-

_neuver out of and away from the main channel of commerce

can hardly be said to have deliberately decided to sink the

ship where it ultimately: founders despite the best efforts to

, 18

keep her afloat. There was no overt intent to sink the dock

in the harbor.. That result was neither sought nor desired.

‘ No one acted for the purpose of achieving that result. Even |

after she foundered, the tugs continued their efforts to move

her, and continuous pumping of the: flooded ‘compartments

_was maintained for many hours. .__

This was not a deliberate, intentional sinking.” -

The fact that the District Court found that the sinking

was the consequence of an inadequate inspection of the dry

dock before it began its journey, a finding of negligence

which Bethlehem stoutiy: denied, did not affect the nature

or charecter of its subsequent volition. There is no sug- .

gestion that the dry dock, if unseaworthy at the commence-

ment of the journey, was known by Bethlehem or Moran

to have been so at that time. There is no suggestion of any

doubt as to her capability to make the voyage to the At-

lantic graveyard. What was done after she began to take

on water was done in emergency because of the necessities

of the situation. Even intentional violations of § 409 are

condoned and approved if done under necessity.” This ‘is

so even though ees played a part in the creation of

the reece ee

= Ill

Dozs THE PRESENCE OF NEGLIGENCE DEFEAT THE RicHT

‘ OF ABANDONMENT?

The District: Court rejected the contention that, when a

vessel founders as a result of negligence attributable to the

11 See Pollock, First Book of Jurisprudence (6th ed. 1929) 147; Prosser,

Torts (2d ed, 1955) 29; Perkins, a Rationale of Mens Rea, 52. ‘Serv. L.R.

905, 911; Holmes, The Common Law (1881) 132; Salmond, Jurisprudence

(2d ed. 1907) 328, 339-340.

38 Atlantic Refining Co. v.. Moller (Bohemian Club), 320 US. 462; The

City of Norfolk, 4 Cir., 266 Fed. 641.

- Atlantic Refining Co. v. Moller (Bohemian Club), supra:

owner, the owner has no right of abandonment under the

Wreck Act. Here the United States strongly urges its con-

tention that the owner does not, and it now has the support

of a recent decision of the Fifth Circuit in United States ©

v. Cargill, Inc., 5 Cir., 367 F.2d 971: We agree with the

District Court.

In Cargill, it appears that two barges broke from their

moorings and sank in the Mississippi River. A, few days

earlier another barge laden with chloririe gas, placed in

the first tier of a tow, removed from immediate observa-

tion of the pilot house and bearing the brunt, of the sea

and the weather, sank. Because of its cargo, agencies of the -

United States thought special precautions sequisite, and

the tanks of chlorine gas were ultimately removed. by the

United States after spending some $3,081,000 on the proj-

ect. In the companion cases, decided in the same. opinion

by the Fifth Circuit, judgments upholding the abandon-

ment of the three barges were reversed and the cases re-

manded for trial of the factual issues of negligence and

causation.

- Cargill represents an abrupt Puna from the there-

tofore uniform interpretation of the Wreck Act. It had

been consistently held that § 403 had no application to the

obstruction ‘of navigable waters ‘by a wrecked. vessel, at

least, if the sinking was unintentional.” Some of the cases*

are not flat decisions that under no conditiori may § 403

‘be applied to the wreck of a vessel. They recognize the Hall

20 U.S. v. Bethlehem Steel Co, (The Texmar), 9 Cir., $19 F.2d 512; U.S.

v. Zubik, 3 Cir., 295 F.2d 53; U.S. v. Wilson, 2 Cir., 235 F.2d 251; In

Re Eastern Transportation Co., D. Md., 102 F.Supp. 913, afd Ottenheimer

v. Whitaker, 4 Cir., 198 F.2d. 289; The Manhattan, E.D.Pa., 10 F. Supp.

45, aff'd, 3 Cir, 85 F.2d 427; U.S. v. Chicago Salvage Corp., S.D.N.Y.,

228 F.Supp. 145; U.S. v. Bridegport Towing Line, Inc., D. Conn., 15 F.2d

240; Loud v. US., 6 Cir., 286 Fed. 56.

21 See Bridgeport Towing Line, Inc., Wilson a Zubik, supra.

- 20

exception,” which we. have considered earlier, where ‘the

owner intentionally scuttled-his burning vessel to save the

rigging from the fire. They limit the exception to that kind

of deliberate scuttling, however, and permit the abandon-

ment of the vessel despite the existence of a claim that the

sinking was the — of negligence . attributable to the

owner. ¢

The-decision in + Cargill is presaged only by Judge Brown-

ing’s dissent in The Texmar.

There are two other cases on the periphery of the prob-

lem which the United States contends points to the Cargill :

conclusion.

_ _ United States v. Republic Steel Corp. ., 362 US. 482,

sanctioned an injunction against a deliberate and contin-

uing deposit of industrial wastes in navigable waters with

a resulting silting of the channel. This was plainly a viola-

tion of the § 403 prohibition against filling or altering a

a navigabfe channel. There was no question of § 403’s appli- . |

cability. The difficulty arose from the fact that § 406, —

which authorized an injunction to enforce § 403, ‘is limited

to the removal of unauthorized structures. The Supreme |

Court found in § 403 an implied authorization of an in-

junction to prohibit a deliberate and continuing violation of

. that section. Its holding intimates no extension of § 403 to

shipwrecks beyond the Hall exception of .a deliberate

scuttling.

’ In United States v. Perma Paving Co., 2 Cir., 332 F .2d

754, the government sought reimbursement for its expense

in dredging a channel into which Perma Paving had forced

silt. by overloading its Property. This was held to‘ have

been a violation of § 403 in its prohibition against filling |

channels. It was also held that, since the government a

2 US. v. Hall, 1Gir, 63 Fed. 472.

° G

have compelled Perma Paving to remove the silt, it could

- recover its reasonable expenses in doing so. In discussing

the question of in personam liability, reference, was made

to the cases holding a negligent owner of an abandoned

shipwreck immune from personal liability for its removal,

. and the Court said, at page 758:

We need not. determine whether if that precise issue *

should arise in this circuit, we would follow those de-.

cisions or Judge Browning’s dissent in the Bethlehem -

__ case. It is enough here that the detailed provisions with

respect to wrecked vessels contained in 33 U.S.C.

§§ 409, 411, 412, 414 and 415, afford a far stronger

basis for immunizing the owners of wrecked vessels

from in personam liability for the costs of removal

than any of the statutes relevant to-this case. Indeed

the author. of the principal opinion in the Bethlehem

case seemingly assumed that the Government could —

have recovered the costs of dredging the channel on —

the facts in-Republic Steel. 319 F.2d 518.” .

Though, in our view, peripheral, Republic Steel and.

Perma Paving are the inspiration for the new look that the

- Ninth Circuit focused on the statutes and of the theory

- which the Fifth Circuit has adopted. This fresh pagpeeny

requires a similar review in this Court.

Judge Browning’ s approach, in his dissent in The Tex- .

' mar, essentially is that, while the Wreck Act specifically

defines the rights of the United States to remove -the’ ob-.

structions of abandoned vessels and to retain the salvage of

vessel and cargo, it does not specifically provide that a

negligent owner has no in personam liability for the ex-

cess removal costs of the United States. Since the Act pro- —

hibits careless sinkings in navigable channels, he would

_ imply an appropriate remedy of an enforceable in personam |

liability, just as the Supreme Court in Republic Steel found

an implied injunctive remedy to prevent a continuing and

deliberate violation of § 403. He found comfort in the _

cases which held or assumed that an owner, who intention-- —

ally scuttled his ship, could not escape such in personam

liability, since the proscription of § 409 applied equally to

intentional and careless sinkings.

There are seyeral difficulties with that approach.

. It would be supposed that no one ever had reason to

' believe that he had a right to fill with industrial wastes a

navigable channel in use by vessels in commerce. Any such

belief could not have survived the earliest predecessors of

§ 10 of the Rivers and Harbors Act of 1899. It was plain

that he was not to do it, and it was no great extension of

the statute to hold, as the Supreme Court did in Republic

Steel, that there was an implied injunctive remedy to ter-'

minate a deliberate and continuing violation. Perma Paving

added a reasonable and logical remedy for the rectification ©

of an established wrong; if one can be required by an af-

firmative injunction to remove the silt he has deposited in a

navigable channel, he may be required to reimburse the

: United States for its reasonable costs in effecting the re-

moval for him.

In contrast, there has been a recognized right of abandon-

ment of a wrecked vessel, unless scuttled intentionally, with-

out any in personam liability for the cost of its removal

‘ 4 even if'it is an obstruction of ‘navigable waters. This was

* the assumption of the Congress which enacted the Wreck

” Act. That was the conclusion of the Court in The Man-

hattan (United States v. Atlantic Refining Co.), E.D.Pa.,

10 F. Supp. 45, —— a and panos v. Phil- —

' 3

- adelphia, 65 Pa. 135. Abandonment, had been recognized

in § 8 of the Act of September 19, 1890, 26 Stat: 450, which

was substantially repeated in 1899 as § 19 of the Wreck

' Act. The’ addition of the provisions of § 15 significantly

worked no change in the provisions of the 1890 act. - .’

If there was a recognized immunity from an in personam:

liability for the .excess cost of removal of an abandoned :

wreck when the Congress enacted the Wreck Act in 1899,.

there can be no logical inference of liability in this area by

analogy to Republic Steel or Perma Paving. All .of the

relevant cases, far closer to the understanding and assump- ;

tions of the times than we, find such an immunity predating

or implicit in the Wreck Act.” This lends weight to their

expositions, and undermines any analogy to be drawn from ‘

Republic Steel and Perma Paving. co

- The theory’s (Judge Browning’s) reliance upon Hall and

the subsequent cases, which have recognized the duty of an.

owner of a ship which creates an obstruction to navigation

as a result of an intentional scuttling to remove the obstruc-

tion and to pay for the excess cost’ of removal, seems nfs-

placed, for the Wreck Acct itself drew the distinction fe-

tween willful and negligent sinkings. Intentional and care-

less sinkings are equally proscribed by § 409, if they create .

obstructions of navigable waters, but § 412 makes a willful

obstruction of a channel by a master or pilot in violation

of § 409 a violation also of § 403. This was not so apparent

in the Act.of 1899, but the présent codification of § 16 of .

the Act does draw a legislative distinction betWeen channel

obstructions created intentionally and those created care- .

lessly with respect to’ the liabilities of the person in charge

of the vessel and the penalties to be imposed. The codifiers’

. *3 See cases cited in footnote 20.

~_ construction seems reasonable, for te provision in g 16 of

the Act sftcifically making a willful violation of § 16 “a

violation of the Act” would have been wholly redundant

if not’ intended to bring it within the proscription of some:

other section, most logically § 10. An intentional creation

of an obstruction of a channel by the scuttling of 2 vessel -

has thus been made referable under § 412 to § 403 and its

related provisions for mandatory injunctions, but a negli-

gent sinking is not. This is consistent with the general. stat-

utory scheme, which wé considered in Part I of this opinion.

The kind of deliberately erected structure: which § 403

_ contemplates, must be rernoved at the expense of the owner

when it constitutes an unauthorized obstruction of navigable

waters, and an injunction is specifically authorized. In con-

trast, under the Wreck Act, the only expressed consequence ~

_ of an owner’s failure to remove a sunken vessel, if the ob- -

struction was not “willfully” created, is to give the United

‘States the right to ‘treat it as abandoned, remove it and

retain the salvage. In this, the statutes draw no ) distinction

- between careless and innocent sinkings. —

Cargill adds the rationalization that the nation’s water-

“ways exist and, at considerable expense, are maintained

by the government for public use, and ,that no one with

substantial impunity ought to be allowed negligently to.

create obstructions in them. There has been, however, a

long history of governmental encouragement and support |

of water-borne commerce. The modern ship construction

and operating subsidies are extreme examples. It has thus

been thought that the theory of the abandonment principle

was that the owner. who has lost his vessel has suffered all

of the economic loss which should be visited upon him,

and at removal of the wreck, if it constitutes an obstruc-

tion to commerce, should be a public obligation.” The risk

of such liabilities might be a very substantial deterrént of

maritime activity or the acceptance of hazardous cargo.

The owner of the barge laden with chlorine gas with which

Cargill dealt is an example. The Government’ s claim ex-

ceeds $3,000,000.” eee

Moreover, since in almost é every foundering there will be

some basis for a claim of negligence on the part: of the

owner or operator, extension of an in personam liability

fora negligently created obstruction would result in great

‘of the owners and. ‘operators can ‘be ascertained. ‘The old

rule, the one which logically derives from the statutes, at

least has the virtue of clarity and certainty ‘in application.

For these reasons, we conclude that neither Bethlehem

nor Moran, after the tendered abandonment, had any ob-

ligation to. remove the obstruction creat by the sunken

dry dock arid no in personam liability to reimburse the

United States for its costs of removal.

We do not consider Bethlehem’s contention that the

finding of negligence on its part was erroneous, for, even

if it was negligent, liability cannot desde posed upon it.”

Revessed.

. See H.R, Rep. No. 1826, 55th Cong. 3d Sess. p?4 (1899) expressing the’

purpose of the similar provisions of the River and* Harbor Appropriation Act |

of 1899 to “give to, the owners of wrecks and abandoned property all possible *

protection consistent with the essential interests of navigation. ” See, also,

The Manhattan (United States'v. Atlantic Refining Co.)' E.D.Pa., 10 F.

Supp. .45; United States v. econ Steel Co. (The Texmar) 9 Cir., 319

F.2d 512, 522.

25 This consideration may have little applicability to a large ‘¢orporation,

such as Bethlehem, or to a vessel bound for the: Atlantic graveyard, but the

‘ statutes make no distinction between fay and small operators or between

new and obsolete vessels. ;

26 It has not been contended in this case that § 409"s proscription . ‘against

voluntary or careless sinkings in “navigable channels” is inapplicable: because

’ the point of the final foundering of the dry dock was well: clear of Brewerton . ;

Channel. We ‘have assumed. therefore, without undertaking to decide, that

the proscrpition is applicable.

SOBELOFF, Circuit Judge, Shins

ine tn For more than thirty-two Years, from 1930 to 1962,

. Bethlehem Steel Company ept in continuous use a 9400

fd at its Key Highway Yard in

Baltimore, Marylan ; 32, Bethlehem decided to in-

stall” aricther: dock of greater capacity and dispose of the

« Qld one. After investigating various alternatives, such as.

oie beaching and burning the old dock on nearby property,

Bethlehem decided that it would be cheaper to employ

Moran to tow it to séa and sink it there. The journey was

undertaken in the early evening of October 17, 1962 but,

according to the’ District Court’s detailed findings, neither

Bethléhem nor Moran had adequately inspected the dock

to ascertain whether it was in Condition to withstand the »

_ trip. Early on the morning ef October 18, the dock began .

_ to ship water through one of its pontoons and it was de-

cided to return it to Key Yard. On the way back, however,

it filled and foundered and was eventually aes, near

‘Sparrows Point.

wie Govenment demanded removal of ‘the sia by

Bethlehem, but Bethlehem declined. The United States

‘than sued to compel Bethlehem to effect removal, and the —

- District Court, after a-full hearing, ordered Bethlehem to

- remove or pay the cost of’ removal. Since the hearing of

_ this appeal, the United States, deeming: the sunken dry

_ dock a menace to navigation, did remove it at an expense

of $163,000. In its preserit: posture,- therefore, the action is

one for the recovery of these costs. - 7:

Although I differ in ‘some -respects with the District

.. Court’s reasons, I think the result reached i is entirely correct.

I would affirm. I agree with the majority that the*District

Court erred in holding that the dry dock is-not a vessel

.. within the meaning of the Rivers and Harbors Act. The

definition of a “vessel” is, as the majority points out, suf-

‘

{

hae =

a < : : | 27 ‘ . . . ‘ ‘

ficiently broad to encompass the dock.. I also agree that it

was not intentionally scuttled soas to bring the case within

the Hall exception. United ‘States. v.. , 63 Fed. 472

(Ast Cir. 1894). But this is by no m dispositive of the

case. To my mind, the controlling question on -this appeal

purpose te immunize -

owners from liability for the cost of removing’ from navig-

able: waterways vessels which have sunk as a result of their

“negligence. I cannot accept the view that Congress meant

‘ to bestow a beneficence on careless owners by nullifying

the statutorily declared obligation ‘of such pom to rg-

move obstructions caused by them: - _

Since the Supreme Court’s decision in United States ve

Republic Steel Corp., 362 US. 482 (1960), which, as my

brethren- recognize, has inspired a “fresh reappraisal” of

the Act, two. circuits have reached conflicting decisions on

the question “before us. * The Fifth Circuit, in United States

v. Cargill, Inc., 367 F. 2d 971 (5th Cir. 1966), held that

negligently emke vessels are obstructions. within the mean-

ing of section 403 and that unde: section 406 their owners

_ can be required to bear the reasonable cost of their removal.*

On the other hand, the Ninth Circuit, in United States v.

_ Bethlehem Steel Corp.,. (The Texmar), 319 F.2d 512

(9th.Cir. 1963), over the strong dissent of Judge Browning,

held that removal costs of carelessly sunk vessels must be _

shouldered by the Government. Judge Browning, differing _

.in approach but agreeing in result with the Fifth Circuit,

- felt that, by analogy-to was or Steel, a — should be.

1 Even before . Republic sie the osiainiialinn were far tren consistent.

Compare The Manhattan, 10 F. Supp. 45 (D.C. Pa.), aff'd, 85 F.2d 42%

(3d Gir. 1935), cert. denied sub nom, United States v. The. Bessemer, 300’ -

_ . US. 654 (1937) with In re- ‘Eastern Transportation Co., 102 F. Supp. 913

— (D, Md.), aff'd sub nom, Ottenheimer v. Whitaker, ig6 F.2d 289 siete

1952).

vain as os: | |

: Aas onl :

implied from section 409 sufficiently broad to reach the -

fiduct interdicted therein.? This diversity of: opinion

es to highlight the fact that clarity of draftsmanship is

not a hallmark, of the Act. A reading of the statutory pro-

visions, with partiguar attention to the overall purpose of

the Act, is thus called for.

The broad objective of the. Rivers and Harbors Act. of

_ 1899, -33.U.S.C.A. §§ 40 et seq., is to keep the nation’s

waterways free from hazards to maritime commerce.’ Sec-

- tion 10, 33° U.S.C.A. § 403, prohibits the creation of un-

authorized obstructions to navigation and section 15, 33

~ US.C.A. § 409, declares it unlawful “voluntarily or care-

lessly” to sink vessel in navigable channels. Sections 12, 19

and 20, 33,U.S.C.A. §§ 406, 414 and 415, enable the United

States to effect the speedy removal of hazards created in

violation of these provisions. In comprehensively . unfolding

its “great design,” ‘Republic Steel, supra at 492, the Act .

thus brackets the careless swner with the willful one; the

distinction drawn is between the innocent, on the one hand, |

and the deliberate or carlesi-an the other. While the Act \

‘- nowhere specifically allocates, as een the Government

and the shipowner, the cost-of-removirig sunken vessels, the _

courts have, since Hall, consistently held ownérs who in-

tentionally scuttle their craft for their. private economic

benefit Personally responsible for removal costs. The stat-

utory grouping of. the negligent with the willful militates

against different treatment of the two with respect to per-

- . 2 Judge Sisiik” aiiciditead tin duals sunk vessel may be an.

obstruction within the meaning of section 403, but preferred to base his

ee Es rt Sa een SR. peas im conten.

409. 319 F.2d at 522.n.1.

. The Second Circuit, in United States v. Seeut: Pering Ce., 332 F.2d 754

(2d Cir. 1964) carefully refrained from expresing an opinion on the issu

before us.

25 -

oo)

rele oe tae stenins ape wel

nara re! an ana ns es RE

. .

: 29 a A

7 |

? ? ,

sonal liability.* ‘This reading of the Act is identical to that

given it by the Army Corps of Engineers, which has-promul-

gated a long-standing regulation covering the exact sit:

‘uation presented here. Sad ep Rta

ea ah, person who wilfully or 1 negligently permits a*

vessel to sink in navigable waters of.the United States\__

may not relieve himself from ail liability by merely ~—

abandoning the wreck. He thay be found guilty of a

_ misdemeanor. and punished: by fing, imprisonment, or

‘both; and in addition may have his license revoked or

suspended. He. may also be compelled to’ remove the

_ wreck as.a public nuisance or pay for its removal.’ 33

' .C.F.R. 209.410 (1962). : |

Tam ‘not persuaded that demu and detailed treat-

ment accorded. sunken ‘vessels in: sections 414 and 415 re-

quires the conclusion that*the Government’s remedies are.

limitgd to removal of the wreck and recoupment of the.

1) salvage. value of. it and its cargo. In furtherance of the

*Cf. The Limitation of Liability Act, 46. U.S.C.A. § 183, which Emits ‘the

liability of a vessel owner to his interest in the vessel and its cargp only wher:

the owner is without “privity or knowledge” of the negligence causing the —

loss, See Austerberry ¢. United States, 169 F. 2d 583 (6th Cir. 1948).

5 This regulatidn -~ ‘ows an administrative interpretation bythe Acting

Secretary of War in ‘901, only two years after the Act was passed. In- re-

‘sponse to an inquiry from an attorney regarding the burden of removing a

sunken schooner which had been engaged in dredging the Black River for

the City of Loraine, Chiu, the Secretary stated:

Replying to the question whether’ the burden i sleigh

rests upon the United States, upon the owner by whose negligence it was

sunk, or upon the City. of dyoraine in whose service the boat was en-

: gaged you are advised that as between the city and the owner of the :

boat it is not necessary for the War Department to decide, but that ——

- under the circumstances stated the burden of removing the boat does

not rest upon the United States, It is believed the vessel constitutes an

obstruction caused by the voluntary or careless acts of those owning or ,

controlling the boat and that the burden of removal rests upon them:

broad purpose of the Act, these sections are aimed at the

vessels themselves and are designed to facilitate removal *

of wrecks thought to menace navigation. The turn of the

: language suggests not the grant of a personal immunity to" :

the’ shipowner but the creation of a right in fav or of the | J

United States to eliminate obstructions to navigation. Ap-

propriation of ‘the salvage value of the vessels and their

cargo merely gives a measure of protection to the Govern-

ment against: the contingency of an insolvent owner. |

Nor i is it convincing to argue that such separate treat-

ment! reflects a. congressional purpose to exclude

: vessels from the class of “obstructions” proscribed by so

tion 403. The logic and common sense of the Act suggest

' that the elaborate Temoval procedures of sections 414 and _

415 were intended to supplement the Government's right in _

. section 406 to enjoin the removal of structures threatening

navigation. They provide a method whereby thte Govern- .

_ Ment may act without the need to secure prior judicial sanc- -

tion, thus implementing the Act’s purpose to expedite thé |

removal of hazards. impeding the: free flow of maritime

Further, while it is rue that ‘section 412 makes a person

in command of a vessel who “willfully” obstructs a-channel

in the manner contemplated in section 409 guilty of a viola-

tion of section 403, this does not warrant the implication

of a congessional purpose to limit the reach of section 403

_ fo intentionally scuttled-vessels only. The definition of an

“obstruction” cannot: reasonably be thought to.turn on -

_ whether a person acts deliberately or carelessly. Naviga-

tion is impeded no less by a negligently sunk vessel than-by- _——

.- one that has been-intentionally scuttled, and it is illogical

-* to ascribe to Congress an intent to exclude carelessly sunk

vessels from section 403. Neither does it make sense to read

— PARR IE ae atten,

; tines tic ad

} f . < \

| ; a : é

. é e .

. | ° ' ‘ :

. .

into section 412 a congressional purpose to excuse owners

who carelessly cause their vessels to sink, thereby creating - ~

- obstructions in violation of section 403. Section 412 is airged

at.an entirely new clais of individuals, masters and pilots, |

. not thtretofore encompassed by the-Act. Nothing in it sup- ~

ports an attenuation of section 409’s explicit condemnation _

of both deliberate and careless sinkings and’ section 403s :

prohibition against the creation of unauthorized obstruc- oa

tions. —

We are not compelled to epee between the reasoning |

of the Fifth Circuit in Cargill and. that of Judge Browning

_ in Texmar. They are nét antithetical ; each harmonizes with |

_ the language as well as the purpose of the Act. Section

409’s proscription of both voluntary and careless sinkings -

seems, as the Fifth Circuit held, but an “emphatic restate-

--- ment,” 367 F.2d at 975, of.section 403’s prohibition against .

. «+ the creation of unauthorized ‘obstructions. Yet even in the .

absence of section 403, the imposition in section 411 of

‘criminal penalties for carelessly causing vessels to sink,

_coupled with the owner’s unquestionable section 409 duty~

to remove sunken. vessels, provides_a‘ sufficient basis for im-

plying a civil remedy in favor of the United States in its -

own right and as the representative of others engaged in .

maritime commerce. See United States v. Perma Paving _

- Co.,.332 F.2d 754, 758 (2d Cir. 1964); Note, Implying

_- Civil Remedies from Federal Regulatory Statutes, 77 Harv. |

L. Rev. 285 (1963). : es

- “In sum, I have no quarrel with the: majority’s dite:

tion that_the-Government has long followed. policies of |

"encouragement and support of water-borne commerce and

~ has been generous in the provision of ‘subsidies in various

forms. But nowhere has Congress manifested such unre- :

_ Strained iar doasaaaae a Dwners so as tO warrant the

implication of immunity from responsibility for the ‘negli-

gent sinking of vessels. It is ay unwarranted extension of

these policies for courts to dilute the clear congressional

condemnation i in section 409 of carelessness causing obstruc-

tions to navigation and the equally clear command to re-

og nove. Since the District Court found. Bethlehem and Moran. -—

~ negligent int failing adequately to inspect the dry dock,

- igi a a be gai Viyscer atts

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Adm. Office, U. S. Courts—3555—6-13-46—150—Lewis Printing Co., Richmond, Va. 23208

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