Appendix — Wyandotte Transportation Co. v. United States (No. 31)

sf - | we Se

APPENDIX A

| eile a AND_ REASONS OF DISTRICT COURT:

MINUTE ENTRY -= -- | *

JUNE 30, 1964 - | :

WEST, J.

_ (Title Omitted.) — Numbers 667 and d 668

These two cases have bten consolidated for disposition

by this Court on the various motions for summary judg-

ment filed by all respondents in both cases. After pre-trial

conference, it was agreed by all parties in both suits that

these matters would be submitted to the Court for decision’

: on briefs to be filed; and that disposition of these cases

45 ‘would await the disposition by the United States Supre

ee ' “- Court of a similar matter presented in the case of Uni

States of America v. Bethlehem Steel Corporation, et al

319 F. 2d 512, which was before that Court on an applica-

tion for writ of certiorari.

The Bethlehem Steel case las now iia disposed of, :

: and after due consideration by this Court of the records in

.-. - these cases, together with the extensive briefs and exhibits

. filed by all counsel. ge 2%

?

IT IS ORDERED that the motions filed ‘by inti re-__

spondent in both cases for summary judgment in their

favor be, and they are hereby GRANTED, and these suits

_ will be, accordingly, be dismissed at plaintiff's cost.

; a

tee REASONS ~ :

: These cases involve the question of whether or not the

‘United States of America may. recover damagés from the~

. owners and operators of vessels which have — sunk in|

“

; . . os. *s ©

W“-N : ; , : 7c

LET ee

+

: ye

a navigable stream with. or. without the negligence of the

_ Owners and operators thereof, and subsequently removed -

efrom the navigable stream by. ‘the’ United States Govern-

ment and at its expense.

This Court i is unable to find : any | wantaattey of any kind -

‘which would support the proposition that the Government,

under these circumstances, has 4 fight to recover the cost, -

of raising such vessels from the owners or operators there-

of. The jurisprudence is clear and unequivoeal to the ef-

fect that the only right.in such a case that the United

aes States Government has to récover its expenses is a right in

tem against the vessels themselves. There ‘is no right - in

personam against the owners of the vessels where the own- .

ers of the vessels havg abandoned them to the Government.

In the instant case, the vessels involved were abandoned

“and the Government did, in fact, acknowledge and accept

the abandonment by attaching, seizing, and selling the ves-

sels and their cargoes when raised from the bottom of the —

Mississippi River. Thus, the Government had the :benefit

of and? has exercised completely its right, in/rem, of re- -°

covery and it has no further right of recovery against the -

owners of the vessels. Willamette Iron Bridge Co. v.

Hatch, 125 U.S. 1, 8S. Ct. 811 (1888) ; Loud v. Ui S., 286

_. F. 56 (CA 6 1923) ; The Manhattan,“10 F. Supp. 45, “AEP.

85 F.2d 427 (CA 3 1936) ; . v. The Bessemer, 300 U‘ S.

.654,.57 S. Ct. 432; Zubik v. U. S.,.190 F. 2d 278 (CA 3—

1951) ; U. S. v. Zubik, 295 F.2d 53 (CA 3 1961); U.S. v.

' + Bethlehem Steel Corp., et al., 819 F. 2d 512 ae 9 ¥963) ;

33U.S.C.A. . 409, ef seq.

fal E. G. W. 3

ec °

. e %

| 4 Oey ey

te JUDGMENT OF DISTRICT COURT.. !

‘Number 7 and Number 668 i.

; (Title Omitted). _ °. Filed: June 80, 1964.

t iar

Por arhles: reasons assigned and filed herein on q une,

30,1964: . eae eee

ITeIS ORDERE , ADJUDGED sch DECREED

. that there be judgment bereifi i in favor of al respondents; |

and against the plaintiff, Ciemitesing these suits: at plain

tiff’s cost. Diep, dh oe

Baton Rouge, Louisiana,, June 80, 1964 en.

/8/ EB. GORDON WEST,

United States District Judge

45 |

APPENDIX B

_ OPINION OF THE UNITED STATES COURT OF |

) APPEALS FOR THE FIFTH CIRCUIT.

(No, 22148—Title Omiitted:)

“SJ” (July 18, 1966.)

Befoye RIVES and GEWIN, Circuit Judges, and |

ALLGOOD, District Judge.

GEWIN, Circuit Judge: This is an appeal from the

judgment of the United States District Court for the East-

ern District of Louisiaria in two admiralty cases involving

* the question of whether one, who. by his. alleged acts of

negligence causes a vessel to sink and obstruct navigation

in inland waterways, may abandon the vessel without in-

curring liability fgr either its removal or cost of removal.

These cases were consolidated’ by the District Court for

disposition of the motions for summary judgment filed by

all defendants in both cases pursuant to Rule 58(b) of the

Supreme Court eAdmiralty Rules. The motions ‘for-sum-

_ Mary judgment were granted and: the suits dismissed. |

In United States v. Cargill, two barges, M 65, owned

by Jeffersonville Boat and Machine Corp., and L 1, owned |

by Cargo Carriers, Inc., were moored by a tug at the Car-

&

~ gill fleet mooring at Jackson’s Landing, Mile 227.5 above

Head of Passes, Baton Rouge, Louisiana, on March 30, ©

_ °1In the case of United States v. Cargill, et ih, Wirvetving: sunken”

barges L 1 and M 65 the — defendant are the owners, managers,

charterers, and insurers. These tee have not been removed. In the

case of United States v. Wyandotte ransportation Co., et al., involving -

*e: _ the barge- Wychem 112 the parties defendant are the owner of ‘the -

chlorine cargo, Union Carbide Corporation; the owner of the Wychem

112,-Wyandotte Transportation Co.; and the owner of the tugboat which

was moving the Wychem 112; Union Barge Line Corporation. The

chlorine tanks on the Wychem gad been removed from the water when

the litigation commenced... . -

46 |

1961. At approximately 3:32 A.M. on March 31, 1961,

_ the supertanker Esso Zurich bound upriver for Baton

Rouge collided with and sunk an unmanned and unlighted

barge, which was drifting in the channel. The incident

was reported by radio‘ to the barge fleet at Baton Rouge

_ and the two barges, M 65 and L'1, were discovered missing.

_ Although only one barge, believed to be the L 1, was located

and showed marks of a collision, both barges, L1 and

M 65, were reported by Cargo Carriers, Inc. as sunk. Cargo

Carriers, Inc. then marked the barges for day and night

-navigation. On April 9, 20, and 26, 1962, Inland Rivers

Transportation Co. and Cargo Carriers, Inc. wired the

District Engineers that they had abandoned the Barges, _

-L1 and M 65, and considered the Government the owner

of the vessels. The United States by return wires refused: °

to accept abandonment ‘and responsibility for marking and ~

removing the wrecks. The United States then brought suit

against the owners, managers and charterers of the.barges"

alleging negligence in the condition and mooring. of the

barges, to have'the defendants decreed the owners of the

wrecked barges and liable for their removal.

The facts in the second case, United States v. Wychem,

are somewhat more dramatic. ‘On March 15-17, 1961, the

tanks of the barge, Wychem 112, a liquid chlorine barge,

were each filled:at Geismar, Louisiana, with 555,000

pounds of chlorine gas to be delivered to Union Carbide

Corporation at South Charleston, West Virginia. The

barge, owned by Wyandotte Transportation Co., was taken °

in tow on March 21, 1961, by the towboat Eastern, owned

and operated by Union Barge Line Corp. The barge, Wy-

chem 112, was in the fourth and last tier of the four tiers

of barges of the tow which kept the chlorine barge under -

easy observation from the towboat: At Baton Rouge fhe

Wychem 112 was — in the first tier away from direct

<>

47

observation of the towboat’s pilothouse and in a position

- where it would bear the brunt of the weather. On March

23, 1961,:with weather and visibility good but with a

strong current the Wychem 112*began to dive and it.sank

near Viladia, Louisiana, in the Mississippi River. Effort

was made by the owners and operators of the barge in the

fall of 1961 to locate and raise the cargo. Two objects

. ‘were located, either of which. could have béen the wreck,

both under hard packed sand. In November 1961 it was

determined that further efforts would be tinsuccessful and

the owners tendered abandonment to the -Government.

Thereafter, the Government began a study of the extent

and potential danger of the chlorine. In July 1962 tech-

nical opinions were issued to the effect that as long as the

. barge remained in the river. it was a potential hazard in

that a leak could develop at any time and recommendations —

were made to raise the chlorine tanks. The Government

informed Wyandotté that it accepted abandonment and

would proceed with removal under Section 19 of the Rivers

‘and Harbors Act of 1899.2 In view of the Government’s

opinion that the chlorine constituted a hazard to public

health and safety, the President on October 10, 1962, pro-

claimed ita major disaster. The tanks were removed at a

cost of approximately $3,081,000 with the concerted effort

of civil-defense, public health and state authorities.? The —

United States then brought suit against the cargo, ship-

| 2In the case of the Wychem the record indicates a possible conflict

- of evidence on the question of whether the Government accepted the

abandonment. The trial court concluded that there was an abandon-

ment_and that the-Government acknowledged and accepted the abandon- .

ment by attaching, seizing and selling the vessel; tanks and cargos when -.

raised from the river. As ‘will be seen later a .determination of the

question of abandonment is not necessary to our decision. ;

3 For an interesting account of the sinking of the barge, Wychem._

112, and the raising of the chlorine containers, see Fales, “Time Bombs ”

in the Mississippi,” Popular Science Monthly, April 1963. ;

Of the total sum spent, $1,565,000 was for engineering expense.

The remaining, $1,516,000 was for public health and safety expense,

which included precautions against Seanade resulting from a possible

rupture of the chlorine tanks during their removal. :

: ~

“~

-. 48

pers, carriers and- consignee, alleging negligence in the

eonstruction, condition and towing of the barge to recover

the costs of removal. Upon motion of the United States,

the District Court ordered the sale of. the chlorine: cargo |

- . and containers which had been seized by the marsha! at

the commencement of the suit and the proceeds paid into

court aero final disposition of the litigation.

x

N * ‘The question brought beltore us in both of ‘these cases

is whether one may abandon with impunity an allegedly ©

negligently sunk vessel which obstructs navigation or may

the Government compel the negligent party to’ remove it or

. pay the cost of removal. . ee

Appellant contends that under both the. Rivers. and

Harbors Act of 1899, and under the federal common law

of abatement of public nuisances, those responsible for the

negligent sinking of a vessel in.a navigable chanfiel have _

a duty’to remove the vessel or reimburse the United States -

if it conducts the removal operation. It is contended by

the appellees that Section 15 of the Rivers: and’ Harbors -

Act of 1899 gives the owner of a sunken vessel the‘right to _

abandon it and that- Section 19 of the Act, which gives the

- Government the right to remove abandoned sunken vessels

and proclaims the Government the, owner of the vessels and

proceeds of their sale, is the sole and exclusive remedy of .

the United States pertaining to the removal of such vessels

from inland WERE WaTS: :

ae Congressional action concerning the problem of aban-

. doned craft in the navigable waters of the United States

began with the passage of the River and Harbor Act of

- 1880, 21 Stat. 180 et seq. Section 4, 21 Stat. 197, provided

that when a sunken vessel obstructed navigation and was

not removed “as soon as practicable,” the vessel would: be

49°

deemed abandoned and subject to. removal by the Govern-

ment. Two years later Congress enlarged the power of the

Government granted in the 1880 Act by authorizing the -

‘sale of such sunken. vessels before their removal.*. In 1890

mi Congress enacted additional legislation’ which contained

two relevant provisions. Section 8, 26 Stat. 454, provided °

_that if a wrecked vessel remained longer than two months _

it could bé, removed by the Government;-and-Section 10,

26 Stat.-455, prohibited the “creation of any obstruction,

not affirmatively authorized by law, to the navigable ca-

pacity of any waters,” and authorized the issuance of an

. injunction to compel the removal of such obstructions. Ap-

parently the thrust of these statutes was ly explicitly per-

mit the. Government to rid channels of abandoned vessels -

and also to make it clear that obstruction of navigation,

was unlawful. This is borne out in United States v. Hall,

63 F.. 472 (1 Cir. 1894), where the Government brought

an action to compel the removal of a wilfully abandoned

and sunk vessel which obstructed navigation. The court

__ held that vessels were obstructions within the theaning of

_ Section ‘10 of the 1890 Act and ordered the defendant to

remove them. Thus, the court did not interpret those por-

~ tions of the various acts, which gave the Government the

right to remove and sell abandoned vessels, to mean that

an abandoned.sunken vessel was not an obstruction ‘pro-

hibited by — 10 of the Act.. , .

Finally, in 1899 Congress .enacted the “Rivers and

Harbors Act® involved in the present litigation. he pur-

pose of this legislation was to codify the existing laws re-

‘ating to navigable waters and House Conferees stafed -it

made no essential changes in the existing law.’ Since the.

7 \* River and Harbor Act of 1882, 22 Stat. 191, 208-209. =

5 River and Harbor Act of 1890, 26 Stat.- 426 et seq.

6 30-Stat. 1121, et seq.,-as amended, 33 U.S.C. 401 et seq. _

*732 Cong. Rec., 2296-2298; 32 Cong. Rec., pt. 3, 2923. f

50

4

Hall case was part of the existing law, it/assumes great .

importance in making a. final decision concerning the ap- _

plication of the various sections of the Act,

&

Those sections of the 1899 Act with which We are

‘concerned are as follows: — “ | pS

Section 10:* The creation of any obstruction /

not affirmatively authorized by Congress, to the ‘

: navigable capacity of any of ‘the ‘waters of the

United States is prohibited; and it shall not be law-

ful to build or commence the building of any wharf,

pier, dolphin, boom, weir, breakwater, bulkhead, . -

getty, or ether structures * * * except on plans rec-. ~

ommended-by the Chief of Engineers and authorized —

by the Secretary of the Army; * * *. '

. 3 . >.

Section 12:° Every person and every corpora-

tion that shall violate any of ‘the*provisiong of sec- .

tions 9,°10 and 11 “.* * shall be deemed guilty of a.

i misdemeanor, and on .conviction thereof shall be

_/ punished by a fine not, exceeding $2,500 nor’ less F

. than $500, or by imprisonment not‘ exceeding one -

year * * *,. And further, the removal of any struc-

tures or parts of structures erected in Violation of °

the provisions of the said sections may be enforced

by the injunction * *-*, ¢,

‘Section 15: It shall not be lawful to * * *

voluntarily or carelessly sink, or permit or cause: to

be sunk, vessels or other craft in. navigable chan-.

nels; * * *. 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 immediately mark

it * * * and maintain such marks until the sunken

craft is removed or abandoned * * * and it shall be

the duty of the owner of such sunken craft to com-

mence the immediate removal * * * and failure to

8.30 Stat. 1151, 33 U.S.C. 403.

*30 Stat. 1151, 33 U.S.C. 406.

1030 Stat. 1152, 33 U.S.C. 409.

a

oe

do so shall be considered as an abandonment of such

craft, and subject the sme to removal by the United

States = e

Saitlien 16:12 Every person and every corpora-

tion that shall violate * * * sections 13, 14 and 15 of

this title shall be guilty. of a misdemeanor, and on

conviction thereof shall:be punished by a fine not

exceeding $2,500 nor less than $500, or by imprison-

4° * ment for not less than 0. days nor more than one

year * * - : :

Section 19: 2 + Whenever the navigation of any

. river * * * shall be obstructed or endangered by any

sunkep-yessel * * * and such obstruction has existed

for a longer. period than 30 days, or whenever the .

abandonment of such obstruction can be legally. es-

tablished in a less space of time, the sunken vessel

* * * shall be subject to be broken up, removed, sold

or otherwise ‘disposed of by the Secretary of the

Army at his discretion * , That any money re-.

ceived from the sale of such wreck * * * shall be

‘covered into ghe Treasury of the United States.

It has been argued that the only portions of the Act

quoted above which. are applicable to sunken vessels are

Sections 15, 16 and: 19...The obstruction of navigable

wafers by sunken vessels and the right of the Government

to remove these abandoned sunken vessels. is given sep- ~

arate and distinct treatment in the Act apart from a

other obstructions, thus vessels have been removed from

the ambit of Sections 10 and 12. In addition, the earlier

Acts which formed the basis of the 1899 Act-had no provi- —

_ sions similar to Section 15 of the 1899 Act prohibiting the

voluntary and careless sinking of craft in navigable waters,

therefore Congress was explicitly treating vessels in toto

in a section entirely apart from all other prohibitions. The

+

1130 Stat. 1153, 33 U.S.C. 411. Aa

12 30 Stat. 1154, 38 U.S.C. 414.

4

-

Doe cae aku eee

a

-Act further provides a separate criminal penalty for the

violafion of Section 15 as well as conferring upon - the

Government all rights of ownership-in an abandoned ves-

. Sel, thus other civil remedies provided by the Act for viola-

tion of other sections are inapplicable. . Therefore, accord- |

*ing to the argument, ignoring Sections 10 and 12 and —

_ reading the remaining sections literally, one with impunity _

' «-ean sink and abandon a vessel and incur only the loss of ©

' .Such@handoned vessel plus the possible imposition of the

criminal penalties if* the sinking occurted voluntarily or

carelessly. MAP? ote ir Sai

: j A Hi ae ij aes

Although the statutory language is subject to an inter- |

pretation as the foregoing suggests, it is not atizne with the

legislative history or logicalgommon sense. - The history

of the various acts demonstrates an intent of Congress to,

- provide a method of government removal of vessels, not to

limit the liability of those causing the sinking. It is illogi-

_ eal to conclude that a vessel is not an obstruction solely.\ °

because it is given separate treatment. Hall bears this out, ¥

When that case was decided, provisions. for the abandon-

-ment and removal of sunken vessels were in existence, but

_ Nevertheless the court found that a vessel was still an

obstruction. Also, the introduction of the prohibition of le

Section 15, “unlawful to voluntarily or carelessly sink”

seems more. likely to be just an emphatic restatement of

the Section 10 prohibition against creating an obstruction,

and not an effort to-remove'sunken vessels from the reach .

of Section 10. In addition, the imposition of a: separate

criminal penalty along with giving the Government the

right to. remove and sell the abandoned vessel does not

preclude a vessel from being an obstruction.”

if has also. been argued that even though fesse! is”

| properly an obstruction, the injunction remedy 6Section

. 12 is not applicable to obstructions but just to.structures :

paris ( J ;

»

s . ‘ - »

. ” ; ,

é

; ‘ :

a :

which are separately listed in the various sections. This

_ we think is reading out of a statute what Congréss clearly’

‘ meant to include. There is‘no reason ‘to limit the injunc-—

tion to the items which must be built by approval from thé

Government to the exclusion of obstructions -which is the

primary prohibition of Section 10.. The prohibition is di-: °

rected to “the creation of any obstruction” and is not lim-

_ lted to obstructions which are created in a peculiar or par-

ticular manner. 5

_ In addition, the statutes do not ‘specifically salute

a suit by e Government for. the recovery of . removal’ .

expenses. {fits we think is implied. It is illogical to reason

that the Government. having been given the Feu to re-

move is penalized for: exercising its right, and in order to

gain full benefit from the statutory provisions must wait

' for the slower injunctive process. The right to recover in

rem from me vessel so removed flows from ownership of

the nap fs does not preckide recovery of reasonable

removal costs from a tortfeasor.

Our sities of the statutes now needs to be considered ©

in light of the.cases decided under the Act. Unfortunately,

they are inconglusive and at best have muddied the waters

| surrounding the sunken vessels.

* Several cases, Loud v. United States, 286 F. 56 \6 Cir.

1928); The Manhatten, 10 F. Supp. 45 (D. C. Pa. 1985),

tid. 85 F. 2d 428 (3 Cir. 1935), cert.’ denied, sub nom

United States v. The Bessemer, 300 U. S. 654 (1987) ; In re°

Eastern Transportation Co., 102 F. Supp..918 (D. C. Md.), °

aff'd. sub nom Ottenheimer v. Whitaker, 198 F. 2d 289 (4

"Cir. 1952) ; United States v. Bethlehem Steel Corp.. (Lhe

* Texmar),. 319 'F; 2d 512 (9 Cir. 1963), have concluded

that the Sections 10 and 12 are e* ndt applicable to sunken:

a

<a

- @ claim against the vessel which-it

~

Mie a

. ’ s , % 2 ad . . ns °

vessels, - In Loud the United States brought an action to .

‘recover the amount expended’ in straightening a sunken .

_ vessel in a-navigable channel. The sunken barge, owned .

by Loud, had collided with an abutment and sunk, thus

_ obstructirig navigation. The Government after straighten-

iffg the vessel stirrendered it to thé owner. The -court

2d States only had -

denied recovery. and held that. the Unit,

by voluntarily sur-

rendering ownership. ‘Significant here is the fact that there

v

were. no claims of negligence on the part of Loud, there- ©

fore, it may be assumed the collision ard sinking were

neither the. result, of wilfullness nor carelessness on the

subjecting him to liability. In the Manhatten the Govern:

. part of Loud. That being true, ‘the cage is correctly decided a

In that Loud has not violated any -provision ‘of the Act,

ment raised its sunken dredge and sought reimbursemént —

from those responsible for its sinking.: The court in decid- -

‘ ing against the Government considered only ‘the sections

‘of the Act pertaining to the.sinking and abandonment of ©

the vessel, and found nothing in the statute allowing the’

_ Government to recover from a tortfeasor, The Ottenheimer

case presented the court with the question of whether the

owner of floating barges could abandon them in navigable’

waters and allow them to sink. The court concluded that .

despite the’ forceful opinion ef the Hall case a vessel was

not. a structure within the meanir f*Sections 10 and 12.

"Hence it,decided the case under Section 15 and concluded

that an owner could only abandon.a vessel by virtue of

“fire, storm, collision or unforeseen unseaworthiness,”

Since this abandonment was. wilful -and not-one of the

above, the court.ordered the owners to.remove the floating

barge. In,the Texmar case, which is factually similar to

admitting the statutes wéfe confusing, the court concluded

y tN

‘the present case, the Government raised an allegedly neg- if

ligently sunk vessel and. sought reimbursement. ‘While -

55

that sunk vessels were treated outside Section 10; and

_since Section 15 limited itself to criminal penalties: and

- Section 19 gave the Government the right to recover against

the vessel, the. Government had no claim. The dissent in

the Texmar case took. the other approach. | The removal

provisions are not-a substitute for Section 10 but the pro- -

hibition of Section"10 applies also ‘to vessels.

| The line of reasoning in the Texmar dissent is demon- im

strated i in several cases, United States v. Bridgeport Tow- —

‘ing Line Iné., 15 F. 2d 240°(D. C. Conn. 1926) ;. United

‘States v. Wetson, 235 F. 2d 251 (2 Cir. 1956); United

_ States v: Zubik, 295 F. 2d 53 (3 Cir. 1961). In Bridgeport :

a craft, while being towed, slipped and sank due to the

negligence of the defendants, resulting in an obstruction

to navigable waters. The Government sued for an injunc-

tion under Section 12 to compel the. owners to remove the

7 craft. The court, while holding that the provisions of Sec-

tions 10 and 12 are applicable to the facts presented, denied —

relief on the ground that the prohibition against the cre-

ation of obstructions meant only a prohibition against the

wilful, not negligent» creation of navigable obstructions.

The Wilson case held that ‘a sunken barge was properly an

obstruction under Section 10 but the injunction provision

of Section 12 only applied to structures and not to obstruc-_ .

tions. In Zubik the court treated the Section 12 injunc-

.. tive ‘power and the. provisions of Section 19, giving the

Government ‘the right’ to remove sunken vessels, as an

‘election. . And since the Government chose to raise. the, ves-

sel, its rights .were limited to the, vessel itself or to the

proceeds from the sale of such vessel.

' Three cases, United States v. Bethlehem, 235 F. Supp.

569 (D. C. Md. 1964) ; United States v. Perma Paving Co.,

832 F. 2d 754 (2 Cir. 1964); United States v: Republic

Steel Corp., 362 U. S. 482,.80 S. Ct. 884, 4 L. ed. 2d 903

ee Sed

aa aa

- (1960), although not dealing with. the problem of sunken _

| vessels, shed’ light’ on whether the Section 12 injunction

is properly applicable to obstructions. In Bethlehem the

- defendant deliberately’ grounded a floating drydock in,

navigable waters. The court held that the drydock was

not a vessel, but an obstruction “under Section 10, and

thereby granted‘an injunction for its removal. In Perma

the defendant put excessive weight on his property caus-

ing silt to move into thé bed of a stream causing obstruc-

tion to navigation. The Government sought reimburse-

ment for dredging the channel. _The co recognized the

application of the injunction power and concluded that

there was no basis for reading the statute narrowly; and

since the Government could have compelled Perma to re-

move the silt, the ‘Government could seek reimbursement

for its dredging operations. In Republic Steel the Govern- _

ment sought to compel the removal of deposits. The ‘Su-

preme Court held there to be an obstruction and granted .

an injunction ‘not by Section. 12 but -solely under Section

10. The prohibition of an act carried with it the inherent

power to enjoin the act.

These cases not only demonstrate -an approach far

from uniform: but illustrate the myria ‘Interpretations of

the statutes in question. Faced with this array of diversi-

fied opinion we are necessarily thrown back: to the legisla-

tive history and the wording of: the statutes themselves,

which leads us to conclude that those cases finding a vessel.

.-an obstruction under Section 10 and thus subject to the

injunction power of Section 12 are to be given the greatest :

ae weight.

X

Our reading of the statute is identical with an ad- .

_ ministrative interpretation” adopted by the Army Corps

. 18 38 C.F.R. 209.410 (1962), first published at 11 Fed. Reg. 177

~4sg28 (1948).

—

on

.

57

of Engineers which provides-in part:

“« * * * a person who wilfully or negligently permits

a vessel to sink in navigable waters of the United

States may not relieve himself from all liability by

merely abandoning the wreck. He may be found

guilty of a misdemeanor and punished by. fine, im-

prisonment, or both, and in addition may have. his

licensé revoked or suspended. He may also be com-

pelled to remove the wreck as a publi¢ nuisance or

pay for its removal.” 7 —

This is not “an authorized effort to administratively im-.

_ prove the statute” ** but a clear and precise statement of

what the statute actually says.

Appellees point out that Congress must think it is

required ‘to raise vessels from navigable waters for it

appropriates funds for “removing sunken vessels or’ craft

obstructing or endangering navigation.” 31 U. 8S. C. 725,

a (b) (14). This is certainly no support for the right of -

- an owner to abandon his vessel with impunity’ because

the Government must always bear removal costs of inno- -

cent ownérs; and also the Goverriment might wish to re~

move a negligently or wilfully sunk vessel instead of en--

forcing-the injunctive process. No doubt there have been

eases in the past, and most likely- others will arise in-the

future, when removal by the Government would be the

_ . . preferred remedy in order to avoid the delay inherent in

‘litigation. seeking an injunction. In such a situation the.

Government would need appropriations for the removal

even though it could get reimbursed.

‘Therefore, we believe the correct reading of the. stat-.

' * wte allows only an innocent owner to abandon his ship and

. that a negligent party must raise the’ vessel or pay for its —

14 The Texmar at 520.

58

removal. Although appellees point out that a decision im-

posing liability on them catches them unprepared for such

an occurrence, such an argument seems inappropfiate as a

means of avoiding the consequences of one’s negligence.

A vast inland waterway such as we have under con-

sideration here, the Mississippi River, is a national high-> —

way in which: all of the people have an interest.’®. It is

. 4 national asset. Such streams rarely, if ever, come to us

in useful form in their natural state when. measured by

' the standard#and requirements of’ present day commerce.

Precisely for this reason the national Government, and.

in many cases state and local governments as well, have

spent vast sums in successful research and efforts’ to im-:

prove, prepare and maintain them as natural resources.

The national character of this natural resource gives the

‘ Government an essential federal interest in it as a national .

artery of commerce.” ;

It is not reasonable, we conclude, for the national

Government to go to such trouble and expense to prepare,

preserve and maintain this river, allow=its use to be im-

paired seriously by those who use it most, and then permit

_ such users to insulate themselves from liability for proved

negligence. Moreover, our interpretation of the statute is

not unusual in view of the wide-spread national interest

‘in its subject matter. For example, in dealing with anti-

trust legislation involving statutes of remarkable brevity

but of wide-spread application, Chief J ustice Hughes stated

that the Sherman Antitrust Act, “as a charter of freedom,

* * * has a generality and adaptability comparable to that

- found to be desirab!e in constitutional provisions. * * *

15 See, for example, 33 U.S.C. § 10:

- “All the navigable rivers and waters in the former territories

of Orleans and Louisiana shall be and forever remain public

-highways.” .

59

The restrictions the Act imposes are not mechanical @

artificial. Its general phrases, interpreted to attain its .

fundamental objects, set up the essential standard of rea-

sonableness.” Appalachian Coals, Inc. v.. United States, : |

288 U: S. 344, 359-360 (1933). See also Standard Oil Co.

of New Jersey v. United States, 221 U.S. 1 (1911) ; Report

of the Attorney General’s- National Committee to Study

the Antitrust Laws (1955), p. 5.et seq. — :

‘While it is true that the statutes under consideration

could have been drafted with greater clarity and more ~ |

detail, it is clear to us that the Congressional intent under-

lying the Rivers and Harbors Act to prevent interferences

with and obstructions to navi ea is so compelling

and fundamental as to require the inference that appro-

priate civil remedies may be applied to those responsible

for such interferences and obstructions. See United States -

v. Republic Steel, supra. nr,

__ Nor do we consider the reasoning which we have ap-

plied to be at variance with fundamental concepts of the

law of negligence. In 1897 Mr. Justice Holmes stated:

' “T think that the law regards.the infliction of tem-

poral damage’ by a responsible person as actionable,

if under the circumstances known to him the danger

of his act is manifest according to common experi-

ence, or according to his own experience if it is more

‘than common, except in cases where upon special

. grounds of policy the law refuses to protect the

plaintiff or grants a privilege to the defendant.”

“The Path of the Law” (address delivered in 1897) ;

reprinted in “Jurisprudence in Action,” -p. 276; “A Treas-

‘ury of Legal Quotations” (Cook, 1961), p. 181.- In the cir-

“cumstances of this case the inherent, imminent and im-

pending danger of the presence of 2,220,000 pounds of

60

deadly chlorine gas in the channel of the Mississippi River,

_ and the obstruction resulting from the presence of the

sunken barges L 1 and M 65, were certainly and positively

clear to these appellees who were engaged in the “more.

than common experience” of using the river. We -are

unable to find any. special grounds of policy upon which

to refuse relief to the Government or to grant a special

.. privilege or exemption to the deferidants if it is proved that

_ their negligence caused the sinking of the barges.

Since appellees’ liability stems from their allegedly

negligent acts regarding the sinking of the various vessels,

it must be determined whether the alleged acts constituted

negligence on the part of any of the defendants. If the

defendants. in the Cargill case are found to be negligent;

the cour?Seuld order the defendants to raise the barges,

M 65 and L 1, from the navigable waters of the Mississippi

River or bear the reasonable cost of their removal. If neg-

ligence is found on the part of the defendants in Wychem,

the damages to which the Government is entitled are those

reasonably flowing from appellees’ negligence and subse-

- quent failure to raise the vessel. Since the Government

properly could have demanded the’ removal, the -cost of

removal by the Government is to be given consideration in

fixing damages ‘but is not conclusive. ) 3 Se

Since we have properly found liability under the Act, _

_ it is not necessary to deal with the contentions of the ap-

ellant that. under the federal common law the appellees

»

_are liable for the abatement of a public nuisance.

Judgment reversed and the cases are remanded for a

determination of whether the acts of the various defen-

dants constituted negligence. . | |

REVERSED AND. REMANDED.

; 61 ; ae | ; ;

APPENDIX C

OPINION AND JUDGMENT OF COURT OF

APPEALS ON PETITION FOR REHEARING

(No. 22148—Title Omitted.) :

Before RIVES and GEWIN, Circuit J udges, and

ALLGOOD, District J udge.

'. PER CURIAM: Upon cgpsideration of the petition :

for rehearing by Union Carbide Corporation, we conclude

that there are no allegations or proof of negligence on the

> part of Union Carbide Corporation and that the summary

. judgment of the District Court in its favor ordering dis-

missal of the libel against it should be and the same hereby

is AFFIRMED. The.opinion, judgment and mandate of -

this Court are hereby modified:and amended in accordance |

with this order. ce. |

"It is further ORDERED that the petition for rehear-

. ing by all of the other parties in said cause be, and the -

same is hereby DENIED.

_ JUDGMENT. |

This cause came on to be heard on the Petitions for

Rehearing filed on August 2, 1966;

_ON CONSIDERATION WHEREOF, It is now here

_- ordered and adjudged that the opinion, judgment and man-

date of this Court are hereby modified and amended in ac- ~

cordance with this Court’s opinion on rehearing; and that

‘the judgment of the-said District Court ordering dismissal

of the libel against appellee, Union Carbide Corp., is hereby

affirmed. ; | ”

Issued as Mandate: ie. - September 12, 1966

“*.

.

?

2

° - -

.

$

4

’

“~ ©

.

.

63

“APPENDIX D

« STATUTES INVOLVED.

33 U.S. C..403: |

’ The creation of any obstruction not affirmatively au- _

thorized by Congress, 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, piet, 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 harhor

.lines have been established, except on plans recommended

. by the Chief of Engineers and authgrized by the Secretary

of the Army; and #€ 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, har-

bor, canal, jake, harbor of.refuge, or inclosure within the.

. limits of any breakwater, or of the channel of any navigags.

ble water of the United States, unless the work has been

-recommended by the Chief of Engineers and authorized by ~

the Secretary’ of.the Army prior to beginning the same.

Mar. 3, 1899, c. 425, § 10, 30 Stat. 1151. - ,

83 U.S.C.406: ate |

_ ‘Every person and every corporation that shall violate ‘ "

,any ofgthe provisions of sections 401, 403, and 404 of this .

title or afiy Palé-or regulation made by the Secretary of

_ the Army in'pursuance of the provisions of section 404 of

_ this title shall be deemed guilty of a misdemeanor, and @n -

conviction thereof shall be punished. by a fine not exceed-

__ ing $2,500 nor less thari $500, or by imprisonment (in the.

case of a natural person)’ not exceeding one year, or by

Roe ote 07 vse) Ati, Ul cnh mnie ae A mis tcc te thinenaaad | Ne rine Se Sct Bom AUR Rieti’ ck

© .

| I 64 : 6: &-

both such punishments, in ‘the discretion of: the court.

And further, the removal of any¥structures or parts of ,

structures erected in violation of the provisions the _

said sections may be enforced by the injunction of any

district court exercising jurisdiction in any district in

which syth structures mayeexist, and proper proceedings

to this end may be instituted under the direction of the -

Attorney General of the United States. Mar. 3, 1899, «|

425, § 12, 30 Stat. 1151; Feb. 20, 1900, c. 28, § 2, 31 Stat.

32; Mar. 3, 1911, c. 231, § 291, 36 Stat. 1167. gh

38 U. S.'C..409:-

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 passagé 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 Navi- ©

gable channel, agcidently or otherwise, it shall be t duty

of the. owner of ‘such sunken craft to immediate y mark

_it with a buoy or. beacon during the day and a lighted -

Jantern at night, and to maintain such marks until the

- sunken craft is remoyed or abandoned, and the neglect or

failure of the said-owner so to do shail be unlawful; and

it shall be the duty of the owner of such sunken craft to

‘commence the immediate removal of the same, and prose-

cute such removal diligently, and failure to do so shall be _

considered as an abandonment:of such craft, and subject.

the same to removal by the United States as provided for

in sections 411-416, 418 and 502 of this title. Mar. 3,

~ 1899, ¢. 425, $15, 80 Stat. 1152, ° :

« WW

/ ie 65

33 U.S. C. 411: .¢

Every person and every siecenittii that shall whats, ;

, or that shall knowingly aid, abet, authorize, or ‘instigate a

violation‘of the provisions.of sections 407, 408, and 409 of

this title shall be guilty of a misdemeanor, and on con-

\viction thereof shall be punished by a fine not exceeding

$2,500 nor. less than $500, or by imprisonment (in the

ease of a natural person) for not less than thirty days nor.

more than.one: year, or. by both such. fine and .imprison-

ment, in the. discretion of the court, one-half of said fine

to be paid to the person or persons giving information .

which shall lead to conviction. Mar. 3, 1899, c. 425, § 16,

30 Stat. 1153. me: ®

We ey er.

ae

Any and every master, pilot, andsengineer, or per-

son or persons acting in such capacity,. respectively, an

_board of any boat or vessel who shall knowingly engage

in towing any scow, boat, or. vessel’ loaded with any ma-.

terial specified in section 407 of: this title:to any point or

place of deposit pr discharge in: any harber or navigable

’ water, elsewhere than within the limits defined and per-

-mitted “by the Secretary of the Army, or who shall »will- .

fully injure or destroy -any work of the United States

contemplated in section. 408 of\this title, or who shall

willfullyobstruct the channel of\any waterway in the

manner contemplated in section 409\of this title} shall be

deemed guilty of a violation of sections 401, 403, 404, 406,

407, 408, 409, 411-416, 418, 502, 549,\686, and 687 of

this title, and shall upon conviction be~punished as pro- —

vided in section 411 of this title, and shall\also have his

license revoked or suspended for a term to be ned ‘by- the

judgé before whom tried and convicted. And. ~any’ ‘boat,

_vessel, scow, raft, or other craft. used; or employe in vio-

lating any of the = of eco 407, 408, a d, —

or,

: o

ts

6 ‘. e s s

3 ° . i

~/

66

of this title shall be liable for the. pecuniary penalties

specified in section 411 of this title, and in addition there-

- to for the amount of the damages done by said boat, ves-_

sel, scow, raft, or other craft, which latter sum shall be

_ placed to the credit of the ‘appropriation for the improve-

-ment of the harbor. or waterway in which the damage oc-

curred, and said boat, vessel, scow, raft, or other craft

Keer may be proceeded against summarily by way of libel in

any district*court of the United States having jurisdiction

thereof. Mar. 3, 1889, c. 425, basic 80 Stat.” 1158. |

_ 88 U. S.C. 414:

Whenever the navigation of any river, lake, harbor,

sound, bay, canal, or other navigable waters of the United soi

States shall be obstructed or endangered by any sunken

vegsel, boat, water craft, raft, or other similar obstruc-

- tion, and such obstruction has existed for a longer period

than thirty days, or whenever the abandonment of such

‘ obstruction ¢an be legally established in a less space of

- time; the sunken vessel, boat, water craft, raft, or other

obstructit 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 dis-

cretion, the Secretary of. the Army may cause reasonable -

notice of such obstruction of not less than thirty days,

- unless the legal abandonment of the obstruction can be

established in a less time, to be given by publication, ad-

- @&

dressed “To whom it may concern,” in a newspaper pub-

_ lished nearest to the locality of the obstruction, requiring

the removal thereof: And provided also, That the Secre- .

tary of the Atmy 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 obstruc- .

a

67

tion as soon as possible after the expiration of the above

specified thirty days’ notice, in case it has not in the mean-

time been so removed, these proposals and contracts, at his

discretion, to be conditioned that such vessel,- boat, water

craft, raft, or other obstruction, and all cargo and prop- -

erty 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, That such bidder shall give satisfactory

security to execute the ‘work: Provided further, That any:

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

any contractor for the removal of wrecks, under this pa a .

graph shall be covered into the Treasury of the Uni

‘States. Mar. 3, 1899, c. 425, 19, 30 Stat. 1154.

33 U.S. C. 415: 3 :

| -Under emergency, in the case of any vessel, boat,

water craft, or raft, or other similar obstruction, sinking

or grounding, or being unnecessarily delayed.in any Gov-

ernment canal or, lock, or in any navigable. waters men-

tioned in section 414 of this title, in such manner: as to

stop, seriously interfere with, or specially endanger navi-

gation, 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 or to destroy it and to clear im- ~

mediately the canal, lock, or navigable waters aforesaid of .

the obstruction thereby caused, using his best judgment

to prevent an unnecessary injury; and no one shall inter-

fere with or prevent such removal or destruction: Pro-

vided, That the officer or agent charged with the removal ;

or destruction of an obstruction under this section’ may in

his discretion give notice in writing to the owners of any -

eee

such ‘obstruction requiring them to. remove it: And pro-

vided 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 sich 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 pro-.. .

. ¢ceedsyof such sale shall be covered into the Treasury -of the.

"_ » United States. “Mar. 8, 1899, c. 425, § 20, 30 Stat: 1154.

68

“S42 UL S.C. 1855:

“It is the intent of Congress to provide an orderly and

continuirig--means of assistance. by. the Federal Govern- ~

' . ment to States and local governments in carrying out their .

- responsibilities to alleviate suffering and damage result-

ing from major disasters, té repair essential public facili-

ties-in major disasters, and to foster ‘the development of .

such State and local. organizations’and plans to cope with

major disasters: as:may be necessary. Sept. 30, 1950, ¢.

1125, § 1,.64 Stat. 1109.

42 U.S.C. 1855 a: hie

- "As used in this chapter, the following: terms’ shall be

construed as follows unless a‘contrary intent appears from

the. context: es

(a) “Major disaster” means any flood, drought, fire,

hurricane, earthquake, storm, or other ‘catastrophe in any

part of. the United States which, in the determination of

the President; is or threatens to be of sufficient severity

bes ‘and magnitude to warrant disaster assistance by the Fed-.

eral Government to supplement the efforts and available :_

resources of States and ‘local .governments in alleviating .

the: damage, hardship, or suffering caused thereby, and .

oo

S

69°

respecting which the governor of any State (or the Board

of Commissioners of the District of Columbia) in which

such catastrophe may occur or threaten certifies the need:

for disaster assistance under this chapter, and shall give

assurance of expenditure of a reasonable amount of the

funds of the government of such State, local governments

therein, or other agencies, for the same or similar purposes

with respect to such catastrophe;

*(b) “United States” includes the District of Colum-

-bia, Puerto Rico, the Virgin Islands, Guam, American Sa-

moa, and the Trust Territory of the Pacific Islands;

~(e) “State” means any State in the United States, ~

Puerto Rico, the Virgin Islands, Guam, American Samoa,

-and the Trust Territory of the Pacific Islands:

_. (d) “Governor”. means the chief executive of any ©

(e), “Local government” means any county, city, -vil-

lage, town, district, or other political subdivision of any

State, or the District of Columbia ;

°

(f) “Federal agency” means any ‘department, inde-

pendent establishment, Government. corporation, or other

agency of the executive branch of the Federal Government,

excepting, however, the -American National Red Cross.

Sept. 30, 1950, c. 1125, § 2, 64 Stat. 1109; June 27, 1962,

Pub.L. 87-502, § 1, 76 Stat. 111. ie

42 U.S. C.1855.b: — a

In any major disaster, Federal agencies ‘are author-

ized when directed by the President to provide assistance .

(a) by utilizing or lending, with or without compensation —

therefor, to States and local governments their equipment, :

supplies, facilities, personnel, and other resources, other

70

“ than the extension of credit under the authority of any

_ Aet; (b) by distributing, through the American National

_ Red Cross or otherwise, medicine, food, and other consum-

able supplies; (c) by donating or lending equipment and

supplies, determined under then existing law to be surplus

to the needs and -responsibilities of the Federal Govern-

-ment, to States for use or distribution by them for the pur-

poses of this chapter including the restoration of public

facilities damaged or destroyed in such major disaster and

essential rehabilitation of individuals in need as the result

of such major disaster; (d) by performing on public or

private lands protective and other work essential for the

preservation of life and property, clearing debris and .

wreckage, making emergency repairs to and temporary re-

placements of public ae of States and local govern- |

ments, damaged or destroyed in such major disaster, pro-

viding temporary housing or other emergency shelter for

families who,, as a result of such major disaster, require

temporary housing or other emergency shelter; and mak-

ing contributions to States and local governments for pur-

poses stated in this subdivision, The authority conferred

by this chapter, and any funds provided hereunder shall

be supplementary to, and not ‘in substitution for, nor in-

limitation of, any other authority conferred or funds pro-

vided under any other law. Any funds received by Federal

agencies as reimbursement for services or supplies fur-

nished under the authority of this section shall be deposited

to the credit of the appropriation or appropriations cur-

rently available for such services or supplies. The Federal . -

Government shall not be liable for any claim based upon

the exercise or performance or the failure ‘to exercise or *

perform a discretionary function or duty on the part of a

_ Federal agency or an employee of the Government in’ carry-

ing out the provisions of this section. Sept. 30, 1950, c. (

‘1125, § 8, 64 Stat. 1110; Aug. 8, 1951, c. 298, § 2,65 Stat:

| 71 |

173; July 17, 1953, ¢.. 295, 67 Stat. 180; June 7, 1962,

Pub.L. 87-502, § 2, 76 Stat. 111.

42 U.S.C. 18565 e:

__ In providing. such assistance hereunder, Federal agen-

cies shall cooperate to the fullest extent possible with each.

other and with States and local governments, relief agen-

cies, and the American National Red Cross, but nothing

contained.in this chapter shall be construed to limit or in

any way affect the responsibilities of the American Na-

tional Red Cross under chapter 1.of Title 36. Bsc. 30,

1950, c. 1125, §4, 64 Stat. 1110. :

42 U.S. C..1855 d:

(a) In the interest of providing maximum -cecbllien

tion of Federal assistance under this chapter, the President -

is authorized to coordinate in such manner as he may de--

termine the activities of Federal agencies in- providing

disaster assistance. The President*may direct any Federal

agency. to utilize its available personnel, equipment, sup-

plies, facilities, and other resources, in accordance with

the authority herein contained.

(b)- The President may, from time to time, prescribe

such rules and regulations as may be necessary and proper —

to carry out any of the provisions of this chapter, and he

may exercise any power or authority conferred on him by

any section of this chapter either directly or through such

Federal agency as he may designate. Sept. 30, 1950, c.

1125, § 5, 64 Stat. 1110.

42 U. S.C. 1855 e:

If facilities owned by the United States are damaged

_or destroyed in any major disaster and the Federal agency

having jurisdiction thereof lacks the authority or an ap- -

- 72

propriation to repair, reconstruct, or restore such facilities, .

such Federal agency is: authorized to repair, reconstruct,

or restore such facilities to the extent necessary to place

them in a reasonably usable condition and to use therefor

_any available funds not otherwise immediately required: .

Provided, however, That the President shall first deter-

mine that the repair, reconstruction, or restoration is of

such importance and urgency that it cannot reasonably be

deferred pending. the enactment of specific authorizing

legislation or the making of an appropriation therefor. If

sufficient funds are not available to such Federal agency

for use in repairing, reconstructing, or restoring such fa-

cilities as above provided, the President is authorized to

transfer to such Federal agency funds made available

under this chapter in such amount as he may determine

to be. warranted in the circumstances. If said funds are ~

insufficient for this purpose, there is authorized to be ap-

propriated to any Federal agency repairing, reconstruct-

ing, or restoring facilities under authority of this section:

such sum or sums as may be necessary to reimburse appro-

» priated funds to the amount expended therefrom. Sept. 30,

1950, c. 1125, § 6, 64 Stat..1111.

42 U.S. C. 1855 f:. betes rns .

In carrying out the purposes of this chapter, any Fed-

eral ‘agency is authorized to accept and utilize with the

consent of any State or local government, the services and

facilities of such State or local government, or of any agen-

cies, officers, or employees thereof. Any Federal agency,

in-performing ‘any activities under section 1855b of this

title, is authorized to employ’ temporarily additional per-

sonnel without regard to the civil-service laws, and the

Classification Act of 1949, as amended, and to incur obli-

gations on behalf of the United States by contract or other-

wise for the acquisition, rental, or hire of equipment, serv-

¢

: 73

ices, ‘materials, ‘ian supplies . for shipping, drayage, travel

and communication, and for the supervision and adminis- ©

_ tration of such activities.- Such ‘obligations, including ob-

- ligations arising: out of the temporary employment of ad-

'. ditional personnel, may be incurred by any agency in such _

amount as may: be ‘made available to it by the President .

_ out of the funds specified in section 1855¢g of this title. —

‘The President may, also, out of such funds, reimburse any

. Federal agency for any of its expenditures under section -

_ 1855b of this title in connection with a major disaster, such

reimbursement to be in such amounts as the President

may deem appropriate. Oct, 28, 1949, c. 782, Title XI,

§ 1106(a), 63 Stat. 972; Sept. 30, 1950, c. 1125, $7, 64

Stat. 1111.

42 U. S. C. 1855 g:

There is authorized to be appropriated to the, Presi-

_ dent a sum or sums, not exceeding $5,000,000 in the aggre-- -

'* gate, to carry out the purposes of this chapter. The Presi-

dent shall transmit to the Congress at the beginning of

each regular session a full report covering the expenditure

of the amounts so appropriated with the amounts of the ~

‘allocations to each State undey this chapter. The President. ~

may from time to time transmit to the Congress supple- .

mental reports in his discretion, all of which reports shall

be referred to the Committees on Appropriations and the

Committees on Public Works of the Senate and the House

’ of Representatives. ian 30, 1950, c. » 1126, § 8, 64 Stat.

1111.

“

“~

15

APPENDIX E

COMPARATIVE WRECK STATUTES

English Statutes |

_ British harbors, rivers, and canals are put in the care

of local commissioners, undertakers, companies, and the

like, each by separate local act..-Examples of a few of these |

acts, concerning wreck remajal, are as follows

Dublin Port and Docks Act, 2 & 33 Vict. Chap c.

Sec. 96:

“|. the harbourmaster or entities may.

_ remove any wreck or other obstruction to the har-

bour, quays, docks or other approaches to the same;

and also any floating timber which impedes the ,

navigation thereof; and the expense of removing _

any such wreck, obstruction or floating- timber,

shall be repaid by the owner of the sanie, and the

- harbor-master or dockmaster may detain. such

wreck, obstruction or floating timber, for securing

the’ expenses” ete.

" Manchéster- Ship Canal Act, 1936, sec. 82

“(1) Whenever any. vessel is sunk, stranded

or abandoned in. part of — (a) any river canal

waterway navigable ehannel lock or dock forming

part of the harbour and port of Manchester or of

the undertaking . . . the company may if they think

fit cause the vessel to be raised or removed ...

“(2) The company may recover from the own-

er of any such vessel all expenses incurred by the

company under this section in connection with that

vessel . as a debt’ in any court of competent

jurisdiction. ve

2

\ . 76 we |

! (6) In this connection the word ‘owner’ in

relation to any vessel sunk stranded or abandoned

as aforesaid means the.owner of tha¢.vessel at the

time of the sinking standing or abandonment there-

2 of. ” of

"” (copied from The STONEDALE NO. 1, [1954] 2

All ER. 170, 178)

These local acts are by Ho means identical, one to an-

other. Sheppey Glue & Cheyfical Works, Ltd.tv. Conserv-

ators of the River ow § Li. L. Rep. 32, 33.

However, there is a pe statute of which these local ©

a

bodies may take advantage ls

“Pome

Harbours, Docks, ound Piers Clauses Act, 1847, 10 & , |

11 Vict. e. 27, s. 56:

“The harbour-master may remove any wreck

* or other obstruction to the, harbour, dock, or pier,. _-

or the approaches to the same, and ‘also any float-

ing timber which impedes the navigation thereof,

and the expense of. perme any ‘such wreck, ob-

struction, floating. timber“shall be ac by ‘the

owner of the same,” etc. *

: Canadian Statute

Revised Stattites of Canada, 1927 Ch. 140, Part II,

. which grovides as follows:

‘Whenever, under the provisions of this Port, the Min-

ister has caused

ene (a) any signal or light. to be placed and maintained

to indicate the positioh of any obstruction or

obstacle;

/ ©) to be removed or destroyed 2 any wreck, vessel

or part thereof, or any other thing by reason

whereof the navigation of any such navigable

77

waters was or was likely to become obstructed,

impeded or rendered more difficult or danger-

ous; or

«. (ce) to be removed any vessel or be thereof, wreck ~

: or other thing cast ashore, stranded or left upon

any public property belong eam i his Mapety'

" in the right/of Canada;

’” and the cost of maintaining such signal or light or remov-

ing or destroying such vessel or. part thereof, wreck or .

other thing has been defrayed: out of the public moneys of

Canada; and. the net proceeds of the sale under this part

of-such vessel or its cargo, or the thing which, caused or

formed part of such obstruction are not sufficient to make

good the cost so defrayed out of the public moneys of

Canada, the amount by which such net proceeds falls short

of the costs so defrayed as aforesaid, or the whole amount

of such cost, if there is nothing which can be sold as afore-

-* said, shall be recoverable with ¢osts by the Crown, *

y (a) from the owner of such -vessel or other thing,

: . or from the managing owner or from the master ~

or person in charge thereof at the time such

obstruction or obstacle was occasioned; or

-(b) from any person through whose. actor fault or

through thé act or fault of whose servants such

‘obstruction or obstacle was occasioned or con-

tinued.

2.. Any sum so recovered shes form part of the boa.

solidated Revenue — of Canada, R.S., c. 115, s. 18, 1909,

ce, 28, s. 4.

ft