# Memorandum — Wyandotte Transportation Co. v. United States (No. 31) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0109%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum - **Published:** January 1, 1967 ## Text meat A Sate gnome In the initia coors: the “uiten States ‘ OCTOBER RM; 1966 | ) No.’ 888 , a citi dateittininis Co., ET ae PETITIONERS v. ° 9 e . - UNITED STATEs ‘OF AMERICA D 2 * £4- ON ‘PETITION FOR A ‘WRIT OF CERTIORARI TO THE © ED STATES COURT OF APPEALS FOR — . f FIFTH CIRCUIT a “/-\. MEMORANDUM FOR THE-UNITED STATES _ "Although we heltiee: that the decision Below is cor- rect, we do not. oppose the petition: There is. aNdir ect pa between the instant case and United States v. Zubik, 295 F. 2d 53 (€.A. 8), and United States v. Bethlehem Steel Corp., 319 F. 2d 512 (C.A. 9), certio- rari ‘denied, 375 U.S. 966. “Moreover, the issue in- volved—whether the cost of removing .vessels negli- - gently sunk in the navigable waters of the United States must be’ borne by the tortfeasor rather than i eae | a eer 1" _, the’ public Treasury—is an important “ recurring one, — 3 aes ‘1. The decision below involves two separate’ cases consolidated by the ‘district court. In one (United States v. 2,220,000 Pounds Chlorine’ Cargo, etc., et _al.), a barge laden with liquid chlorine under pres- - sure sank in the Mississippi River on March 23, 1961, . Hoe being push-towed,- and her owner notified the © 3 Corps of Engineers that ‘it’ abandonéd. the - barge. In view of the ‘potential menace of over two ' “million pounds of. chlorine gas escaping from the ‘barge’s. tanks, President Kennedy proclaimed the . _- sinking a major | disaster ‘and directed that the tanks - _be removed, The chlorine-laden tanks were then re-- : moved from the river bed ciency the concerted ef- ‘ forts of civil. defense, public health, and State au-: thorities at a cost to the government of approxi- “mately $3,081,000. Alfeging negligence in the con- struction, condition, and towing of-the chlorine barge, the government brought suit to reco¥ér the costs of - ,.- removal against the cargo, its consignee and the own- .."ers of the chlorine barge and the tugboat tet 1 was pushing it when the sinking occurred. . : In the other case (United States -v. ‘cargill, Ine. k ot al.), the barges L1 and M65. were struck by a supe nker during the early morning hou se ‘of March 31, 1961, and sank in the Mississippi River. The ‘owners and-charterers of the barges marked them for day and night. navigation; they then notified -the Corps of Engineers that they abandoned the vessels _ and deemed the government their owner. The govern- | " ment, refused to accept the. abandonment. Thereafter, | \ ° a —— v 2 ts painitei s_idltts tae tii string ihtatee Iatiie Sphnatideatat cialpe tates idbacinillnn Aeleaae > s° ° , ‘ ‘ ° 4 Par, e *\. * . alleging negligence i in the condition nd mooring of , __ the barges, the goverriment sued th¢ir owners, man-- agers, charterers, and insurers to Haye them decreed , liable for the removal of the barges. & The district ‘court entered summary judgment i against the United States in each action on the ground that “the only right * + * that the United States Government has: to recover its Sent gp is a right in | - rem against the vessels themselves” ( Pet. App. 17). The Fifth Circuit reversed and remanded for trial on the issue of petitioners’ negligence.‘ The court noted » that Section 10. of the Rivers and Harbors Act of 1899 (30 Stat. 1151, 33 U.S.C. 403) prohibits -— “the creation of any obstruction” to navigation, ahd’ ‘that Section 15 (33 U.S.C. 409) specifically makes of unlawful “to voluntarily .or carelessly sink, or pérmit or cause’ to-be surik, vessels or other craft — in. navigable channels.” Relying, inter alia, on United Stateg v. ‘Republic Steel Corp., 362 U.S. 482, the court held that implicit in these statutory prohibi- ‘tions are the necessary remedies—injunction or money damages—to. place on tortfeasors- the burden of re- moving vessels sunk as the result of their negligence. 's The court rejected petitioners’: principal argument that Section 15 of the Act. permits the abandonment &vith' impunity of negligently sunk vessels, stating. that “the. correct: reading of the statute allows only 1Qn the petition for ‘ie of the consignee of- the chlorine cargo, the court of appeals affirmed thé summary judgment entered in its favor on the ground that “there are C). no ee or ts of. — on its ates (Pet. App. : Kg AL MDE BEADED, . SP Rathi, se ee us | Vin eet en ie 4a 2 an innocent owner to abandon his ship and that a negligent party must raise the vessel or pay for its removal’”’: (Pet. App. 31).? ) 2. The decision below is in direct conflict with de- 7 cisions of the Third and Ninth Cirguits.. In United . States. v. Zubik, 295 F..2d 58 (C.A. %),:the govern- ment sued: the owner of a negligently sunk vessel to recover the costs expended i in raising the wreck. While . recognizing in'dictum (id. at 56) that the.government may obtain an injunction to compel . removal of a sunken vessel, the-court of appeals read the Rivers and Harbors Act as limiting tle government’s right to monetary. relief to. an in rem proceeding against - the vessel itself. An United States v. Bethlehem Steel Corp:, 319 F. 2d 512 (C.A. 9), the government was de- nied an injunction to compel the_removal of a negli- gently sunk ship by her owne~ and: charterer. Al- ‘though acknowledging that Section 15 of the Rivers - and Harbors Act prohibits the negligent: sinking of a ° vessel, the court. of ‘appeals’ (Judge Browning dissent- ing) read this section as conferring on a negligent shipowner the absolute right to limit his liability, for : removing the vessel. to. his interest in the vessel, . ‘3 . view of its decision that the — a sable Act ~~ implicitly afforded the relief requested, the court did not reich the government’s altePnative argument that it was entitled to the requested relief under the common daw and maritime law: In the event that certiorari is granted, the United States reserves \the right to renew this argument as an additional basis for affirmance of the judgment below. _ 8 We do not. ‘agree | with petitioners’ claim (Pet. 7, 10-11) | of a conflict between the decision below and the decisions in China Union Lines, Ltd. v. A.’O. Andersen & Co, 364 F. 24 id ; Be o § &* x 5 8. Although we do not oppose certiorari, we note briefly our reasons for-believing that the decision be- . _ low is correct. Section 10 of the Act prohibits the creation of “any-obstruction” in the navigable waters :_ of the United States, and Section 15 more particu- larly prohibits the sinking of a vessel. The - final - Clause of Section 15—that “ * * * 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, an failure to do so shall be con- sidered as an abandonment of such craft, and subject the same to removal by the United States Ci ee upon which petitioners rely, does not confer on a neg-. ligent shipowner the absolute right’ to limit -his lia- bility to his interest in the sunken vessel by abandon- ing it. Rather, under the traditional principles off ad- miralty law (see, e.g., the Limitation of Liability 769 (C.A. 5), and United States v. Wilson, 235 F. 2d 951 (C.A. 2). In the China Union case, the government: sought _ (and was granted) relief solely in rem against the ‘vessel; it did not seek recovery in personam. The statement in the _ court's opinion that “* * * the Government could hot proceed — im personam against China Union * * *” (id. at 792) is dictum. In Wilson, the United States sought by injunction to compel the removal of a suaken barge from the Hudson River. The court implicitly held that the barge was an “ob- : struction”$prohibited by Section 10, 33 U.S.C. 403, but also . held that injunctive rélief was available only under Section 12 of thé Act, 33 U.S.C, 406; and that that_section’s reach was confined to the enjoining of “structures.” The latter holding has in effect been overruled by the subsequent decision of this Court in United States v. Republic Steel Corp., 362 U.S. 482, that injunctive relief is not limited to the: removal of “structures” and that the right to an injunction against’ any “obstruction” is implied in the Act. | . Oo ‘ ‘ r RO atin Raa tte oe NO ABE BO ne. , ” . LOS See DRAM an wit J Ks OS rahe AE age NS ", z 6 ., Act of 1851, 9 Stat. 635, as amended, 46 U.S.C. 182, et seg.), only an innocent vessel owner may limit his. liability to the vessel; one who intentionally or negli- - gently sinks his vessel may not. Moreover, the final clause of Section 15 may not be read as conferring ‘any rights stemming from an abandonment on tort- feasors other than the vessel owner=—such as the charterers of the barges and the tugboat owner in these cases. Accordingly, under this Court’s decision | in United States v. Republic Steel Corp., supra, 362 U.S. 482, an injunction to compel petitioners to re- - - move the-sunken barges L1 and M65 would properly issue. And, by analogy, an award of monetary dam- ages is appropriate where the government, because of the exigencies of the matter, has itself removed the iy obstruction. See United States v. Perma: re Co., ar 832 F. 2d 754 (C.A. 2).. — 4, That the issue is‘a recurring one is hint from the cases to which we have already made: ref- erence. In addition, we note the pending case of In the Matter of Marine Leasing Services, Inc. (E.D. La., Admiralty No. 869) in which the government seeks to recover $1,757,500 expended in-connection - with the removal of six hundred tons of liquid chlor- . ine’ under: pressure from: another. barge, alleged to have been negligently sunk in the Mississippi River in September 1965. The increasing amount: of traf- fie on navigable waters and the increasing size of vessels and their cargoes make it predictable’ that ‘the issue will continue to arise. 7 For the foregoing reasons, the’ United States does | “not oppose the petition for a writ of certiorari. | Respectfully submitted: LZ. THURGOOD MARSHALL, Solicitor General. BAREFOOT SANDERS, Assistant Attorney General. ALAN S. ROSENTHAL, MARTIN JACOBS, Attorneys. JANUARY 1967. | eae er opern iy re: oe ¥ v: &. covennmenr printine orice; 1967 _ 243772 544 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0109%3A03. Public record. Not legal advice.