# Brief for Petitiones — 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%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitiones - **Published:** January 1, 1967 ## Text e. . 4 ie > Opinions chegiaian ec ae a ‘saheaes i nuwadaghued ane GURGIOUOR... 4. o's xv ecckcccocss EA tice pare eC = " | Statutes and vagtintbiies NOOR in nc ccu bik ncciantdces Question presented_--- ----- EI EE aoe A he et ens oe ee . oe Sita Lr UE Gs UGE ls OEP ee 1. The WYCHEM actidn... ..~ 29.0.5 “ BT Cer Ose on aa ee ccnac 3. The decisions below_-_--_-_.---.------ inate gf Summary. of Argument- -- -- sll siti tana ailag liek Al is etl natn DUE. Loins ia wickacis 6 iaddanhe catia adbehecdiak _ I. The Rivers and Harbors Act of 1899 prohibits the © negligent sinking of a vessel in a navigable river and réguires those responsible to ‘remove ‘the vessel or pay the cost of removal__ Nbning sam A. Petitioners are personally liable under Sec- tion 10 of the Act for the negligent B. Petitioners are personally liable under Sec- _ C. Petitioners cannot avoid sieeinal liability for their negligence by abandoning the II. Apart from statutory law, those résponsible ne the negligent sinking of a vessel in navigable waters dre required to remove the beaca. or pay the cost’ OEE oid Gav niccc mestitettie TEs dbwkudlnces A. The’ Rivers and Harbors Act. does not preempt . non-statutory grounds of B. Petitioners’ negligence created public nuisances which they must abate or pay . “the.cost of abating- KiStiediekcimuns wade . C. The United States is entitled to compel abatement of a nuisance in navigable waters or to recover the costs of abate- tion 15. df the Act for the negligent Page SCONUONNNN He —_— 10 11 40 45 : Conclusion... .. 41,46 - Loud v. United States, 286 F. 2d 56_-...------------- —«d16 Manhattan, The, 3 F. Supp. 75, 10 F. Supp. 45, affirmed, 85 F. 2d 427, certiorari denied sub nom. United States v. The Bessemer, 300 U.S. 654_ 16,20, 24, 26 Mayor et al. of Georgetown v. Alexandria Canal Co., he te aa ig _. 44,45 Miller v. Chatterton, 46 Minn.'338, 48 N.W..1109___-_- 45, 46 | North Bloomfield’ Gravel Mining Co. v. United States, ot IG 6 eae Oe cnn when cenexaabs 14,48,49 -. Norwich Co. v.. Wright, 13 Wall. 104.....-.-----!+-- 27 - Orrell v. Wilmington Iron Works, 89 F.Supp. 418, ‘reversed in part on other grounds and affirmed in part, 185-F, 2d 81.22 --222-222heeeeeeeneee 21, 22, 24 m . - . 2 ome . . 5 2 - ab chien a MBs ea edibie j ah RA pee ei ae San nel bE RP iii ae Jee pasnnisGeedisr men 1 ‘ 9 ey ine otha At eer ea . é ? : Wo : Canes—Combirined Page ‘ Pennsylvania, The, 19 Wall. 125 gh anieel kuibiete eat ecard 28 4 Pennsylvania v. Wheeling & Belmont’ Bridge Oo., 1 aah : TE: Sa ticndsantiesNbenckknn Chwdeneacdaubowen. — 48 People v. Gold Run Ditch & Mining Co., 66 Cal. 138, } 4 Pac. 1152_______- See eI a. Dace ai 45, 46 ‘People v. Vanderbilt, 26 N.Y. 287_..-...-...-.----- 40 ’ Petition of Boat Demand, Inc., In the Matter of the, 174 . F DN ih ca hacctascunaxeks 22, 23, 36, 46 ; Piscataqua Navigco Co. v. New York, N. H. & H.R., 89 ; ON Ss acca nik Said Nek Aaa etante 46 , Port Hunter, The, 6 Fr Supp. 1000. eco ite Kay, 34 F ; Plymouth, The, 3 Wall. 20__-_------ ere ore Wee 46 ; % Reitmeister v. Reitmeister, gf Reenpere ere 14 } ' - Rose v. Miles, 4 Miles & Selwyn 101 (K.B. ee _.---. 44, 46 Sanitary District v. United States, 266 U.S. 405_ 12, 14,47, 48 Seeind,: Tak, GOs ith. Peeled avnccncscuscacceescSne 24,27 - Snug Harbor, The, 53 F. 2d 407, affirmed sub. nom. United States v. Eastern Transp. Co., 59 F. 2d 984_ 27 Spenser Kellog & Sons v.- Hicks, 285 US. 502... a State of Texas v. Goodnight, 70 Tex. 682, 11 S.W. 119- 45 Stinson v. Wyman, 23 Fed. Cas. 108._______-.----- 27 Stonedale No. 1, The, (1955]-2 All E.R. 689 (H. ae 27, 41 i Swan, The, 23 Fed. GR Wien kickin dne es euiiee wk soe . - ‘Taylor v. Atlantic Mutual Ins. Co., 37 N.Y..275-.--- . 22,24 Texas & Pac. R. v. Rigsby, 241 US. a ee a 14° ; Tyne. Improvement Comm’rs'v. Armement Anverssois ~~ S/A, [1949] A.C. 326, [1949] 1 All E. R. 294 °(H.L.) - | Udall-v. Tallman, 4 ee apie es —..89 United States v. Bethlehem Steel Co. (The Texmar), - 319 F. 2d 512, certiorari denied, 375 U.S. 966.--.._ 10, 11, 16, 19, 20, 24,34 : United States v. Bethlehem Steel Co., 374 F 2d 656, . _° certiorari pending, No. 130, October Term, 1967___ 11, ; 15, 16, 17, 20, 24, 34, 35, 36 United States v. Bridgeport Towing Line, Inc., 15 F. Sask coninnnendcnnicdnenpdieedibedledidietth Uke 16 United States v. Duluth, 25 Fed. Cas. 923 (No. 15,001) — 49 United States v. Du Pont & Co., 353 U.S..586_--_---- 37 . United States v. Hall, 63 Fed. 472_____---- 12, 16, 35, 45, 48 United States v. Mississippi and Rum River Boom Co., Me %5 3 Fed. 548 ae ee ee cine camhwonia: 49 _* a a Pe ned ts Recta i = ' ~ Cases—Continued United States v. New York Céntral R. Co., 252 F. sii “Page 508, affirmed per curiam, 358 F.2d ec 15, 16 United States v. North nen, Mining Co., 53 Fed. On eo ona ' 49 United States v. Perma Paina Co., 332 F.2d 754- 14, 15, 20, 50 United States v. Republic Steel Corp:; 362 U.S. 482___- 7, - 8, 10, 12, 13, 14,-17, 19, 20, 36, 38, 41, 43, 47, 48 United States v. Rio G; and Irrigation Co. » 174 U. S. : Willamette Iron Bridge Co. v. Hatch, 125 U.S.1_ 42, 43, 44; 49 Winpenny & Chedester v. Philadelphia, 65 ia 135_... 24, 25 Constitution, Statutes and Regulation: Constitution of the United States: Rivers and Harbors Act of 1890, 26 Stat. 426: - Geen nx send nih canceling Eke secuscoenuwniwan a ee United States yv. San Jacinto Tin Co:, 125 U.S. 273. a a. ? 47, 48, 49 United States \ v. Standard Oil, 384 U.S, 294 ae wee 17 United States v. State Road Department of Florida, 189 ; F, 24 591, certiorari denied, 342 U.S. 903__._____- 50 United States v. W: tleon, 235 F.. 2¢:251___....-.-.- 13, 16, 20 United States v. Wishkah Boom Co., 136 Fed. 42, appeal dismissed, 202 U.S. NS Sa ents 13. United States v. Zubik, 295 F. 2d 53____________- 15, 16; 20 Viebahn v. Board of County Comm’rs, 96 Minn. 276, . (Ws Wc dle ec IAA to et ae 45 Walker v. Boston Hope Ins..Co., 80 Mass. 288 - _ __-_- mi 27 _ Wheeldon v. United States, 184 F. ERS erence -21 White v. Crisp, 10 Ex. “ 312, 156 _ Rep. 463 Na dctnabiniwiiietoe di cnbldksena aun aeateds ; IIS, NR Bink cadence a oe Disaster Relief Act, 42 U.S.C. 1855, et seg....------. 4, 50 - Limitation of Vessel Owner’s: Liability Act of 1851, 9 Stat. 635, as amended, 46 USC. 181- 1... 9, 26, 28 . ‘ 46 U:S.C. NG dein Adland oo dk eiteted slesih sitio 57 46 U.S.C. 183(a)_.-_-_- cakpldbdnn hid sntekeae 87 OTE, BI sisi sin wee icasens enuicetins base Aidpickae 28, 58 Rivers and Harbors Act of June 14, 1880, 21 Stat. 180, CR ba ASPET hae REE +-- 30,31, 32 Rivers and Harbors Act of 1882, 22 Stat..191___._____ 32 Section ate a whcscd canbe ee aiid Ba aa, 32 _ Constitution, Statutes and Regulation—Continued ali ainda sah STs hy "rh Rleata, eeenton Rain Te ealgy ta oct a ee es ee ee Rivers and Harbors Act of ‘March 3, 1899, 30 Stat: | 1151, et seg., as amended, 33 U.S.C. 401, et seg.: Page _ | Ma A Ts PR oon hk oo en cnt iF w~ , 8, 10, 11, 12, 13, 15, 16,17, 18, 20, 51 .. Gertien 13, 34 USC. 006... oc ce 13, 51 Section 16, $3: U.S.C: 400... 2.22.2. 7, 8, 10, 11, 12, 13, 15, 18, 19, 20, 27, 28, 33, 34, 38, 52 Section 16, 33 USC. | See oe Sak tiie Wi bs aicaah 15, 53 | Section 16, 33 U.S.C. 412________ Soe ES RES Fe 18, 53. Section 17, 33 U.S.C. 413___.-_----2-- 22-2. 54 Section 19, oP | oe | Ree eee 12, 15, 29, 55 -* Section my Oe War ORB. 00 cc we ccc 12, 15, 29, 56 31 U.S.C. 725a(b) (14) sia Aste kaa we ck emwenen 35 bk ye eee idihehed btbighs ack wate wA4° Louisiana Direct Action Statute,. 15A La. Rev. Stat. Sih cae Aa ee go 6 Harbours, Docks, and Piers Clauses Aét, 1847, 32 & RS ee eee mand 40 . 33 C.F.R. § 209.410 (11 Fed. Reg. 177, A-828)----.. 38, 58 Miscellaneous: Comment, Substantive and Remedial Probleme i in Pre- — venting. Interferences with Navigation: The Republic Steel Case, 59 Colum. L. Rev. -1065 (1959)__...... 14, 44 10 Cong. Rec., Pt. 4, 3437 (1880)_-.....-.--.---... 31 21 Cong. Rec., Pt. 9, 8604-8605 _._.-._________ ae 32 Cong. Ree., Pt. 3, 2296, 2297 (1899)_____.__.____ 13,14 32 Cong. Rec., Pt. 3, 2923 (T1899). -..-.....2____. « 198 Depsrtmeyt of Army Pamphlet, 27-164, “Military | * Resérvations and N ew aters” Guly 1961), Dh kd tek ct dhs ide ba i Rake cis Races = Desty, A Manual. of the Law Relating” to Shipping “and Admiralty § 392 (1879)-.-__+ Mbetuvtinakcue 12, 42 Gilmore & Black, Law of Admiralty (1957)..-__-___- 27, 28 H. Doc. No. 293, 54th Cong., 2d Sess. (1897)......-. 13, 40 H. Rep. No. 1633, 88th Cong., 2d Sess. (1964)_-a__: 37 Hughes, Handbook of mariccate Taw § 142 (2d ed.. Pt ibnaE mess sll bbcivieacwaedl cckac 22 Marsden, Collisions at ie 172-73 (London, 10th ed. .. i Note, 41 Tul. L. Rev. 459 (1967). ........_______- 18 Prosser, Torts, pp. 401-2 (2d ed. 1955)-____-_ PETITES Ae 44 | Ray, The Removal of Obstructions from Navigable _, Waters—Who Pays?, 34 Ins. Couns. J. 28 (1967). _- 24 : 9 4 ia pas eure : . - WIT ‘ec. ' Miscellaneous—Continued . nest Page Restatement of Restitution, § 115 (1937 ed.)_..----____ 46 3 Sedgewick, Damages, p. apes (Oth ed:)...:......... 45 4 Shearmen & Redfield, Negligence, .p. 1866 (rev. ed.’ AI941)__- ca ted ati Gaete tees A ae AB »2 Story, Equity Jurisprudence § 1248 (14th ed.1918)-. 45 Wisdom, Obstructions in Rivers, 119 Just. P. 846 (1955). 12, 41 ie : io ~ :, > , y) , ¢ i ; - > =, ae — ‘- : a >. 4. ; gill, Inc., et al., at 367 F. 2d 97; The opinion on peti- \ tion for rehearing en banc (R: 172) is reported at 367. F. 2d 979. The opinion of the district court (CR. ° 146) is not ee reported. ao - -‘« JURISDICTION The See of the court of appeals was entered on July 13, 1966 | (R: 166), and a petition for rehear- ing en basic (R, 167) | was.-denied on September 12, 1966 (R. 172). The petition for a writ of certiorari ‘was rag on December 7, 1966, and granted on Feb- © (1) | 276-833—67——-2 f - | | , - ¢ | - ruary 13, 1967 (R. 174; 386 U.S. 906). The jurisdic- | tion of this Court rests upon 28 U.S.C. 1254(1).- ' STATUTES AND- ‘REGULATION ah ahead ee eT ae ee ewe ee) The statutes and Yegulation involved are set forth in the appendix to this brief, pp: 53-60 infra. ¢ : : a . QUESTION PRESENTED | . Whether one who negligently causes a vessel to sink | and obstruct navigation in an inland. waterway. may, by abandoning it, avoid personal responsibility for the icine ed vessel. or the cost of removal. « STATEMENT . This. case involves two separate actions, consoli- -dated by the district court (R. 145), both arising out »- of the negligent sinking of vessels in the Mississippi ; ’ River. The. United : States commi@heed these libels to | | establish petitioners’ responsibility either to remove the sunken vessels or to reiniburse ‘the giana for the net cost of their removal. — 1. The WYCHEM action." On March 23, 1961, the barge WYCHEM 112, loaded with 2,220,000 pounds of liquid chlorine sank in the Mississippi River near Vidalia, Louisiana ‘(R. 22-23). Thé.-chlorine was _ - stored on the WYCHEM in four chemical tanks, each ~ 75 feet long and 1114 feet in diameter (R. 22), and — containing’ some 275 tons of chlorine (R. 26).’ The 1 United ‘States of America v. 2:220:000 Rounds Chlorint ’ » Cargo ex Barge WYCHEM 112 and. Containers, in rem, and ‘ Union Carbide Corp., Wgandotte Transportation Co., and Union Barge Line. Corp., in gil (E.D. La., Adm. No. .668) @. 1). ? As noted in the libel (R. 36), this is more » norms than the —s io . ; o. € chlorine in these tanks was under pressure and if any escaped it would be in the form of deadly chlorine gas (R. 24, 73). Estimates were made that escapé of the. gas might cause 40,000 to 50,000 casualties, with 10,000 to 25,000 fatalities (R. 25). Even a single small leak in the valves. of the storage tanks could result in the release of all of the chlorine gas (R. 24). he owfier and operators of the WYCHEM, and— their underwriters, made some efforts to locate and raise the barge and its -deadly cargo (R.\ 24). However, in. November, 1961, the owner of the WYCHEM—petitioner Wyandotte Transportation Company, a wholly owned subsidiary of the Wyan- dotte Chemicals Corporation’—notified the Corps of Engineers that further efforts to locate and salvage the wreck would-be unsuccessful; that iftwould assume — --no further responsibility for the barge or its cargo; ‘and that it was abandoning the vessel (R. 40-41). f Germans used in their first chlorine gas attack i in 1915 at Ypres - which caused 5,000. deaths. An affidavit (R. 33-35) filed in the district court by the Wyandotte Transportation Co. alleged that while it. had been owner of the WYCHEM, the barge was being operated by its parent corporation, Wyandotte Chemicals Corp., under a bare- boat charter at the time of the sinking. The government there- ‘after moved to amend its libel to add Wyandotte Chemicals Corp. as an additional party (R. 144). The district court’s dis- ‘ missal of the action made it unnecessary for it to rule on this motion, and therefore neither the district court nor the court of appeals acted upon it. Presumably the district court will decide the motion upon remand, if the judgment of the Fifth Circuit reinstating the libel is affirmed. *The court of appeals, noting that the record indicated a possible conflict. of evidence on the question of the govern- ment’s acceptance of abandonment, expressly refrained from e ot) : 4a ‘Wyandotte Chemicals Corporation rejected a de- * ’ _ mand by the government that the -wreck be removed ">> CR. 95). iN After the grave — laealoe by the sunken /.\. vessel was. fully appraised by government agencies, MS including the Public Health Service and the Office of « 7 ‘\Emergeney_ Planning (R. 25), the President of the. at - United States, on October 10, 1962, * proclaimed a a major disaster under the Disaster Relief Act® (R. 25). The “United States thet undertook to abate the . _ emergency and. avert: ‘a catastrophe by locating the WYCHEM,; and. Taising and removing: over a thou- sand tons of chlorine. These efforts were: successful. ; ‘7 In the. course of the operation; the government. in-. ° curred expenses of approximately $3,081,000 (R. 28).° When the owners and operators of the WYCHEM - refused to reimburse the United States for these ex- penses, the government instituted ‘a libel in rem against the salvaged chlorine cargo (R.° 20) and in personam against the owner of the WYCHEM (peti- - tioner Wyandotte Transportation Co.), the « owner of ° . P PTE y abt I aes . ‘ / resolving the issue since the question of abandoninent vel non - ihe was not necessary to the decision.of the court (R. 158). The . 1 district court had concluded as a matter of law that the gov- , ernment accepted the abandonment by attaching, seizing, and - selling the wreck when it was raised’ from the river ‘(R. 146- 147)... ° | - .. 542 U.S.C. 1855-18559. The Governor of Mississippi also _ claimed a major disaster (R. 25). | © $1,565,000 was. for engineering expenses - while the remaining $1,516,000 was for public health and safety expenses, including necessary precautions against a possible rupture in the tanks - during salvage operations (R. 28). For a description of the salvage operations, see Fales, “Time Bombs in the ee q Popular Sci. eet, April, 1963. (R. 72-85). res ‘ ° 5 the tow boat that had been pushing the WYCHEM when it sank (petitioner Union Barge Line Corp.), andthe owner of the chlorine cargo (Ugpén Carbide Corp.) (R. 20-22), | The libel alleged that the sinking of the WYCHEM | ces Was cased solely by the ‘‘fault and neglect’’ of _ Wyandotte, Union’ Barge, and Union Carbide (R. - 96). Enumerated in the libel were some sixteen sep- - arate acts ‘of negligence (R. 26-28), including in- adequate manning, a failure to fasten a hatch cover _. oh the barge, improper design of the barge, lack of’: _ essential equipment, dangerous towage procedures, and general unseaworthiness. The relief requested was a decree for the damages suffered by the government in removing the wreck (R. 28-29). io _ , Upon motion of the government, the district court ordered the sale of the chlorine cargo and containers, _ seized by the marshal at. the commencement of the suit. (R. 29-30), and directed the. payment of the — | $85,000 -in proceeds into ‘the registry of the court, " .pending final disposition of the litigation (R. 31). ° Thereafter, motions: to dismiss the libel made by each of the parties ‘sued in personam (R. 32, 44, 46) were — consolidated for decision with similar: motions in the. second of the two actions (R: 145). 2. The Cargill action. The libel in this action al- leged the following (R. 12-18): At the end of March — 1961, the barges M 65 and L 1 were moored by a tug, * United States of America vy. Cargill, Inc., Cargo Carriers Ine. Inland Rivers Transp.: Co., Jeffersonville Boat and. Ma- - chine Co., Continental Ins.-Co., Travelers Ins. Co.. (E.D. La., Adm. No. 667) (R. 1). | ce | SPs eas sBiok 25m oo emilee men = ev ait itt Daten gra slaas . wet. ~ a” , t een Di bd eb Ni KB in PA ss Bit etek MG Mas ate Rb Aan Let 6 time chartered to petitiorier Cargo Carriers, Inc., at the Cargill, Inc. fleet mooring, mile’ 227.5. above Head -of Passes, Baton Rouge, Louisiana (R.. 14). At approximately 3:32 A.M. on March 31, 1961, near mile 224 above Head of Passes, the super tanker ESSO ZURICH collided with and sank ‘an unmanned . and unlighted barge that had been drifting in the channel (R. 14). The bow lookout on the ESSO. ZURICH had seen two unlighted barges, only one of which was hit (R. 14). At 1:24 P.M. later that day, petitioner Cargo Carriers notified the Corps of Engi- neers that barges L 1 and M 65 had been sunk that day (R. 14), and subsequently the Corps of Engineers was notified-that both barges were being abandgned _ (R. 15). The United States refused to accept aban- . donment or assume. responsibility for remov ing .the - wrecks (R. 15). | -_ The United. States thes’ brought suit: —— the ; a owners, managers, charterers, and insurers® of the two barges, alleging that negligence in the condition and mooring of the barges had caused their sinking in the navigable waterway (R. 17). In its prayer for relief, the United States sought ‘a decree that the ‘respondents named in the libel had the responsibility and liability for marking and removing the. wrecks (RR. 17-18). *Suit against the insurers was brought pursuant .to the Louisiana Direct Action Statute, 15A La. Rev: Stat. 22:655 (R. 17). Respondent Continental Insurance Co. covered these ‘barges under a standard type Inland Protection and Indemnity form which included coverage for “any attempted or actual raising, removal or destruction ‘of the wreck of-the insured vessel or the cargo thereof, or any neglect or failure to raise, remove or destroy ” same” (R. _— ). -7 3. The decisions below. The district court entered summary judgment against the government in each action on the ground that “the only right * * * that © the United States Government has to recover its ex- penses is a right in rem against the vessels them- selves’’ (R. 147). The Court of Appeals for the Fifth Circuit reversed and remanded, holding that under the Rivers and Harbors Act of 1899 (30 Stat. 1151, 33 U.S.C. 401, et seq.) those persons responsible for the | - negligent sinking of a vessel in navigable waters are’ | liable in personam for the removal or the cost of re- ° moval of the vessel. The court noted that Section 10 - of the Act (33 U.S.C. 403) prohibits “the creation of. any obstruction” to navigation and that Section 15 (33 U.S.C. 409) specifically makes it unlawful “to voluntarily or carelessly sink, or permit or cause to be “sunk, vessels or other craft in navigable channels.’ - Relying, inter alia, on United States v. Republic Steel Corp., 362 U.S. 482, the court held that the statutory prohibition in Section 10 implicitly recognizes the availability. of the remedies of injunctior or monetary ‘damages, imposing on the tort-feasors the burden of ‘removing vessels sunk as the result of their negligence. The court remanded the case to the district court for trial on the issue of negligence. Petitioners’ applica- tions for rehearing en banc were denied (R. 172).° °On petition for rehearing filed by the consignee-owner of the chlorine cargo, Union Carbide Corp:, the court of appeals af- firmed the summary judgment entered in its favor, on the ground that “there are no allegations or proof of negligence” on its part (R, 172), That determination is not before this Court for review. | CBD BAO Ct AIG a . % 4 : . oe aaa te SOE Egasse Ee Oe ee bead i ee See tee Pees. ar et eee on : cli *. - . 8 SUMMARY OF ARGUMENT I - The Rivers and Harbors Act of 1899 prohibits the negligent sinking of vessels in navigable waterways. . Two separate sections of the Act embody this prohibi- tion. Section 10 makes unlawful the creation in havi- gable waters“of “any obstruction’? not authorized by. Congress. Section 15 makes it unlawful to “carelessly sink, or permit or cause to be sunk,” a vessel in — navigable waters. Under well settled principles of law, - recently applied by this Court in United States v. Re- _ puble Steel Corp., 362 U.S. 482, these prohibitions can be enforced by resort.to appropriate judicial remedies, even. if the statute itself does not precisely define them. ‘Accordingly, the- court below correctly held Section 10. . conferred upon the government the right: to obtain a ‘mandatory injunction to compel: those. ‘responsible for the negligent sinking of vessels to remove them and, _ where the vessels have been removed by the gover nment, _ the right to recover in personam the cost of removal from those who caused the obstruction. The rationale of the court’s holding: that Section 10 . ‘creates in personam liability applies with at least equal force to Section 15. The declaration in, Section 15. ‘that it is unlawful to cause.a. vessel to sink in a navi- gable waterway. necessarily presupposes the existence of effective judicial remedies. Thus Section. 15 provides ; an alternative: basis for affirmance. _. Sel thas been abandoned by those responsible for The liability imposed by the Act cannot: be de- feated by the expedient of abandoning the sunken vessel. Under the general maritime law and the Limi-— tation of Vessel Owner’s Liability Act of 1851, a per- son who negligently sinks a. vessel remains per- | sonally liable for the consequences of his fault even though he abandons, his vessel. Nothing in the Rivers and Harbors Act of 1899 alters this poliey. There- fore, the mere fact that the. negligently sunken‘ ves- the sinking does not relieve such persons of liability under the Rivers and Harbors Act for removing the vessel’ or. paying the cost of removal. | _ rt | The Rivers. and’ Harbors Act of 1899 was passed. as a compilation of legislation affecting the evigalile waterways. It did -not, and was not intended to, dis- place completely the corpus of non-statutory law in --this area. Under non-statutory law, a vessel negli- gently sunken in navigable waters ¢onstitutes a pub- lic nuisance which must be abated by those who created the nuisance, or they are liable’ for the expenses of ‘one who lawfully abates the nuisance. Because of its — regulatory and proprietary interests in the Missis- ' sippi River, the United States is entitled to invoke the non-statutory law to compel those who created a nuisance by negligently sinking their vessels to abate _ the nuisance, or to abate the nuisance itself and compel those responsible for it to reimburse the government for expenses reasonably incurred. 276-833—67——_3 a ih) hate ac arn iz sea BR esata di mete cae ne GB adn ee P . 10 ARGUMENT I. THE RIVERS AND HARBORS ACT OF 1899 PROHIBITS THE . ‘NEGLIGEN T SINKING OF A VESSEL IN. A NAVIGABLE RIVER AND REQUIRES THOSE RESPONSIBLE’ TO REMOVE THE VESSEL OR PAY THE COST OF REMOVAL - The Rivers and Harbors Act of 1899” was part of a “great. design”’ to: facilitate the unimpeded flow * of commercg, over the waterways of the Nation by — assuring the: ‘existence of navigable channels free of obstructions: United States v. Republic Steel Co., 362 U.S. 482, 492. It is clearly inconsistent with this leg- islative _plan to: permit those who own, operate, or . use vessels on our public rivers to avoid personal re- sponsibility for the consequences of unlawfully ob- structing the navigable waters by negligently sinking their vessels. Sensitive to this reality, the court be- low—and. dissenting’ judges in other recent cases. presenting the same quéstion—correetly construed the _ Act as imposing on persons who negligently sink ves- sels the liability - for. removing them or for paying ‘the cost of their removal. The court below found that Sections “10 of the Act (33 U.S.C. 403) creates such liability because a sunken vessel is an unlawful “obstruction’’. within the mean- ing of that section. In United States v: Bethlehem Steel Co. (The Texmar), 319 F. 2d 512 (C.A. 9), certiorari denied, 375 U.S. 966, J udge Browning: in dissent wrote that Section 15 of the Act (33 U.S.C.. 409) creates personal liability in this type of case by 7°30 Stat. 1151, as.amended, 33 U.S.C. 401-418, The relevant, portions of that Act are dss at PP. 53-59 a teat «~- oe 11 expressly making unlawful the careless sinking of a vessel. And Judge Sobeloff, dissenting in United States v. Bethlehem Steel Co., 374 F. 2d 656, 669 (C.A. 4), certiorari pending, No. 130, October Term, 1967, noted that the reasoning of the Fifth Circuit in ‘the case at bar and that of Judgé Browning in The Teamg? are consistent with each. other, although each premised om\_ personam liability on a different section of the Act, and recognized that each construction was in-harmony _ with the clear ——- and fundamental —— of the Act. We submit that m - personam liability for the negli- gent sinking of a vessel may be founded upon either | Section 10 of the Act or Section 15, or both. We there- fore set forth our arguments in the alternative, either of which we believe fully supports the imposition of | personal liability by the court: below. =» : A PETITIONERS ARE PERSONALLY LIABLE UNDER. SECTION 10 OF THE - , ACT -FOR THE NEGLIGENT SINKING - i A threshold question is whether a vessel negli- -gently sunk in a river constitutes an “obstruction”’ forbidden by Section 10 of the Rivers and Harbors | Act of 1899, 33 U.S.C. 403, p. 53, infra, That section provides in pertinent: part: The creation of any obstruction not affirma- _ tively authorized by Congress, to the navigable - _ capacity of any of the waters of the United States is prohibited; * * *, The plain language of this section is broad enough to include within its prohibition the- negligent sinking of a vessel in navigable waters. Moreover, the term - “obstruction”’ as used 1 in Section 10, consistently with . on ean et Aer 8, . be AG Bek shined ehiaies S cert diction o 1 gable capacity of any waters * * *.” ae | | 2 / historical usage,” has been construed liberally so that it is clear that the term encompasses sunken vessels, As ~ stated in United States v. Republic Steel, supra, 362 ‘US. at 487-488, dn obstruction is “anything, wherever done or\however ddye, within the limits of the’juris- Ethe United States which tends to destro navigable capacity of one of the navigable water also, Sanitary District v. United States, 266 U.S. 405: _ The provision of Section 10 of the 1899 Act prohibit- ' ing obstructions was based on a similar provision in the Rivers and Harbors Act of 1890, 26 Stat. 426, . _ 454-455." Under the prior Act, a sunken vessel, deliber- ately scuttled by its ownets, had been held to be an- . “obstruction”? which the government by injunction could compel the owners to remove. United States *, v. Hall, 63 Fed. 472 (C.A. 1). In enacting the 1899 Act, Congress. expressly stated -it interided to codify rather than change existing law.. There was no hint that Congress did pot share the uffferstandjng of the First Circuit ‘in Hall that the term “obstruc- . “A river may become obstructed in a variety of .ways, i.e., ‘by * * * (5) vessels sunk or inconveniently moored "i 2. _ dom, Obstructions in Rivers, 119 Just, P. 846 (1955)$-see Desty, A Manual of the Lqw Reliting-to Shipping and Admiralty § 392 (1879); Tyne Improvement Comm'rs »v. Armement An- .. verssois S/A, [1949] A.C. 326, [1949}1 All E.R. 294 (HLL): _The phrasing of Sections 15, 19, and 20 of the Rivers’ and Harbors Act of 1899, 33 U:S.C./ 409, 414, 415, testifies to the understanding. of the ‘Congress that enacted Section 10 that . sunken vessels are “obstructions.” . — oe * Section 10 of the 1899 Act ptohibited “thie creation of any obstruction, not affirmatively authorized by law, to the navi- “ ~ ‘a thé United States * * *’ (quoting from United States vy. Rio. Grande Irrigation Co:, 174 U.S. 690,708). ‘See, » - a vel @ ‘ be = ae oe Pe s Ml 58 ee = alll 6 Rtn Bt ~ Die Aare ee ee tion’’ includes sunken vessels." Thus the text of Sec-— tion 10, the construction of that section by this Court, the historical understanding of the term, and the legis- lative history, aH support the holding of; the court below that. in negligently causing the sinking of the barge WYCHEM, containing the 2,220,000 pounds of chlorine, and the barges M 65 and L 1, petitioners , created an “obstruction’’ prohibited by Section 10. 2. A violation of the Section 10 prohibition is made a crime by Section 12. (33 U.S.C. 406) of the Rivers ‘and Harbors Act. The question here is whether the absence of a comparable provision explicitly granting a civil remedy for injuries caused by a violation of the - prohibition precludes enforcement of the Act except by criminal présecution.'“ We submit the silence of the statute does not bar civil relief. | **The House conferees -stated the Act was intended ‘as a “codification of existing laws pertaining to rivers and ‘harbors, though containing no essential changes in the existing ‘law.” 32 Cong. Rec.- Pt. 3, 2923 (1899). See 32 Cong. ¢Rec., Pt. 3, 2296, 2297 (1899). In Republic Steel, supra, this Court ‘noted that the Act made “no essential changes in existing law.” 362 US. ‘at 486. | any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the in- . * . . a kw nn 1 Alii vals nae ciiyeaild ta Nion nhin ts anit A. Chie st te bbdd Pete 9: oscechll A a o b a todas Aegpcn til ¢ ’ e . ts 14 ‘ There is a well settled rule that disregard of the - command of a penal statute i is a wrongful act for which the courts will imply a right to recover damages from. the offending party. E\g., Texas & Pac. R. v. Rigsby, '241 U.S. 33, 39-40; J. Case Co. v. Borak, 377 U.S. - 426, 433; North Bloomfield Gravel Mining Co. v. United States, 88 Fed. 664, 678-679. (C.A. 9); Reitmeister v. Reitmeister, 162 F. 2d 691, 694. (C.A. 2); Dann v. Studebaker-Packard Corp, 288 F. 2d 201, 208-209. (C.A. 6). It was this gerieral principle that this Court - relied&dn in United States v. Republic Steel, supra. In. that case, the government sued to enjoin three manu- » facturers from dumping industrial wastes into a navi- . .gable river and to compel them to remove existing» junction of any circuit court exercising jurisdiction i in any district in which such obstruction may be threatened or- may exist; and ~*~ proper proceedings in equity to this end may be instituted under the -direction of the Attorney-General of the United Sta 26 Stat. 455. This explicit . authorization was never specifically , ‘repealed. The repealer in the 1899 Act extended only to “all laws or parts of laws inconsistent with” the provisions of the -Act. The Rivers and: Harbors Act*of 1899. was intended to be an integrated compilation of existing law, and was-not designed to reduce the substantive protections of the navigable waterways. To the objection that: the bill would revise existing law, the Senate floor manager replied: “Oh, no. There are not ten words changed in the entire thirteen sections. It is a compilation.” 32 Cohg, Rec. 2297 (1899). Sée;: also, H. Doc. No. 293, 54th Cong., 2d Sess.. (1897). Becausé the two Acts were presumed to be harmonious, for many years after the passage of the 1899 Act, courts—i cluding this Court—continiued to cite as of continuing force various sections of the 1890 Act, among them Séction 10. ', ‘See-Comment, Substantive and Remedial Problems in Preventing Interferences with Navigation: the Republic Steel Case, 59 Colum. L. Rev. 1065, 1067-1068, n. 21 (1959) -and cases cited; United States v. Wishkah Boom.Co., 136 Fed. 42 (C.A. 9)/ap- peal dismissed, 202 U.S.. 613. Contra, United States. v. Wilson, . 235 FP'2d 251 (C.A. 2). - ra en ae A ae deposits. Having concluded that the defendants were — _ ereating. an “obstruction’”’ prohibited by Section 40 of the’Rivers and Harbors Act, the Court held that an ac- tion for civil injunctive’ relief would lie, notwithstand- . ing the fact that the Act expressly provided only for criminal sanctions. This Court stated (362 U.S. at 492) : * * * the Attorney General could bring suit, even though Congress had not given specific authority. The test was whether the United States had an interest to protect’ or defend. Section 10 of the present Act defines the in- terest of the United States which the injunction serves. * * * Congress has legislated and made | th purpose Cleag; it has provided enough fed- © | we eral law in § 10 from which appropriate reme- _.dies may be fashioned even though they rest on inferences. Otherwise we impute to Congress - a futility incoPigtent with the great design of _ this legislation. ‘See, also, Sanitary District v. ‘United States, 266 U.S. 405; United States v. San Lacinto Tin Co., 125 U.S. 273; North Bloomfield Gravel Mining Co. Vv. saad : Statés, 88 Fed. 664 (C.A. 9). | ‘+ Republic Vteel directly sustains, the holding of the - , court below that an injunction will lie against the op- erators of the barges M 65.and L 1 to compel them to ‘remove these obstructions. We believe it also supports the ruling that the government may recover, from those responsible for .the sinking of the barge WYCHEM the cost of removing the 2, 220, 000 pounds | of chlorine constituting an: obstruction, for the imposi- — .tion of removal costs is. equally one of the “appro- priate remedies [whieh ] sod be ee from Sec- \ ae . © BB ic ean eine et tes oe ontnenentiv 7 * «16 . . tion 10. That is the view of at least two of the other ‘circuits where the question has arisen. United States’ _v. Perma Paving Co., 332: F, 2d 754 (C.A. 2); United © t ': States-v. New York Central R. Co., 252 F. Supp. 508 | : (D. Mass.), affirmed per curiam, 358 F. 24747 (C.A. 1). ‘ See, also, Restatement .of Restitution, § 115. (1937). But see, United States v. Zubik, 295 F. 2d 53 (C.A. 3). ‘° - As the Court of. Appeals for the Second’ Circuit ob- ' served in Perma Paving, rejecting the contention that the Act only permitted injunctive relief and not re- covery of removal costs (332 F. 2d at 758): We can think of: no sensible reason why Con- gress should: have desired that if the executive _- branch ‘chooses to ‘effect.immediate removal of an obstruction, through the services of the . Corps of Engineers or otherwise, rather than resort to the slower injunctive ‘process of the’ courts, the offender should thereby escape his QM ES PTA ial ; _ 8. The immediacy of the crisis created by the sink- ~ ing of the WYCHEM is ample demonstration that the. United States should not be considered remediless be- ‘eause it proceeds with dispatch in an emergency, in- stead of asserting its right to injunctive relief. A de- q eree for reasonable costs is cleatly the complementary.” | _ remedy. Petitioners contend, however, that Section 10. ° is inapplicable to negligently sunken vessels. Pet. Br. * pp. 26-27. Pointing to the fact that subsequent sections. of the Act * expressly refer to sunken vessels, they urge that these sections‘are the only ones applieable and that — -- . any liability must be derived from them. And they rely | /. on the Fourth Circuit’s decision in United States v. gin ae belie ng Gi eh Meh! sims “ >.” ; , ? PA i ’ | Kies Solio atte aM Antsy it oes etc SS. ans 00 ST opt . - \ In sum, we submit that J udge Sobeloff’s dissent in Bethlehem Steel ‘persuasively reinforces the correct- _ ness of the decision by the Fifth Circuit below, hold- . . ing Section 10 applicable to ‘negligently sunken ves- sels. This construction is the only one that is in accord with the clearly expressed policy of the Act | to keep waterways free of obstructions, and it echoes _ a the spirit of the decisions of this Court vindicating that policy. i ** There .is certainly no warrant for distinguishing between intentionally and negligently sunken vessels—as the majority. in Bethlehem Steel was apparently willing to do. Judge Sobeloff, dissenting in that case, was plainly correct in saying that the definition of “obstruction” used in Section 10 “cannot reason- ably be thought to turn on whether a person acts deliberately or carelessly.” 374 F. 2d at 671. As the Fifth Circuit observed here, defining an obstruction in terms of how it arose is incon- sistent with the plain language of the section proscribing “any” obstruction. 19 B. PETITIONERS ARE PERSONALLY LIABLE UNDER SECTION 15 OF THE . ACT FOR THE NEGLIGENT SINKING Even if Section 10 reasonably could be construed as inapplicable to negligently sunken vessels, . peti- tioners would still be liable-in personam under Sec- tion 15 of the Act (33 U.S.C. 409), which deals expressly with sunken vessels.° Like Section 10, Section 15 sets’ forth an explicit prohibition which * is designed to assure that navigable waters ‘remain —. free of obstruction. In relevant part, it provides: — It shall not be lawful to * * * voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable chan- nele °° *, | . As we view it, this prohibition against the careless or negligent sinking of a vessel igs an “emphatic ‘restatement, ’’ particularizing the Section 10 prohibi- tion on “obstructions”. : Petitioners do not dispute that the negligent sink- ing of their vessels violated the Section 15 prohibi- tion. Nevertheless, they argue that they are. exempt from in personam civil responsibility because the Act does not explicitly provide for it (Pet. Br. pp. 10-12). As with Section 10, there is no express. statement of : the civil consequences of negligently sinking a ship in violation of Section 15, but only a criminal sanction.” 18 See Note, 41 Tul. Lo hw. 459, 463-464 (1967), discussing the instant case. a .™° Section 16 of the Act, 33 U.S.C. 411 provides: “Every per- son and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation: of the provisions of sections * * * 409 [Section 15] Of this title shall be guilty of a misdemeanor * * *,”. se - , et AS Oa - “ “ See at ree. Sine lgecig le Alliys leew toe i 4 R a2. ae eee 4 St arlitl c bt ee ee oe ee tet eres 7 SB tan Hiren e.-- volt com oe ’ see een eee dowel. . . i ; i > | = Sint, WA ERM Alte Cite i MM! et aay BS NE 20 Petitioners therefore contend that a violation of Sec- tion 15 subjects them solely to the criminal sanctions. ° As we have seen, this same line of reasoning is ad- vanced by petitioners as a defense to liability under — Section 10. It has no greater merit when applied ‘to Section. 15, It requires no extended discussion to ex- plain that this Court’s teaching in Republic Steel applies equally to effectuating Section 15. The legal principles already discussed with respect to Section 10. permit civil remedies to ‘be fashioned out of Section 15 so as to avoid imputing to Congress ‘‘a futility in- consistent with the great design of this legislation.” . Republic Steel, supra, 362 U.S. at. 492. It is a-corol- lary of equity that an indictable interference with | -havigability is also subject to injunetion. Mayor et al. of Georgetown v. Alexandria Canal Co., 37 U.S. 91, 97; - Attorney-General v. Terry, L.R. 9 Ch. 423, 432 (Ch. App. 1874) ; People v. Gold Run Ditch & Mining Co., 66 Cal. 138, 150, 4 Pac. 1152, Accordingly, it follows © . that there is liability under Section 15 for the removal “Ot negligently sunken vessels or the cost of their re- moval. As stated by Judge Browning ip his dissent in The Texmar; supra, 319 F. 2d at 523: ‘ [Section 15], like [Section 10], reflects the interest of. the. United States ‘in the unob- structed navigability of its waters. Republic Steel holds that to protect this interest an in- -junctive remédy must be implied against those: _ Who create an unauthorized obstruction in vio- lation of [Section 10]; therefore a like remedy is to be implied, against those who voluntarily or carelessly sink. vessels in navigable channels - in violation of [Section 15]. Since the United States may by mandatory injunction impose the . a _ ch ec canc Hee Lash me Sage esi pe - ‘21 ~- burden of ‘removal upon one who sinks a ship in violation of [Section 15], the government should not be denied restitution if it is compelled ‘to assume the costs of removal by the refusal of the wrongdoer to discharge. his duty. * * * See Bethlehem Steel, supra, (dissenting opinion) ‘ys C. PETITIONERS CANNOT AVOID PERSONAL LIABILITY -FOR THEIR * * NEGLIGENCE BY ABANDONING THE WRECK — Despite the fact that petitioners have violated the explicit prohibitions contained in Sections 10 and 15 of the Rivers and Harbors Act, they argue that they | may immunize themselves from the in personam con- Sequences of their unlawful negligence by the simple expedient of abandoning their vessels, This argument is based upon their conterition (Pet. Br. pp. 17-21) __ that under the general maritime law an owner has a right to abandon his negligently sunken vessel and —°Tn addition to the Bethlehem and The Texmar cases and the case at bar, the issue of whether a civil remedy could be implied from the prohibition of Section 15 has been expressly considered in Zhe Manhattan, 10 F. Supp. 45 (E.D: Pa.), affirmed, 85 F. 2d 427 (C.A. 3), certiorari denied sub nom. United - States v. The Bessemer, 300 U.S. 654; United States vy. Wilson, 235 F. 2d 251 (C.A. 2); and United States v. Zubik, 295 F. 2d 53 (C:A, 8), $5 The Manhattan and Wilson, were decided prior to Republic Steel, and the courts found no civil sanctions under Section 15. The authority of the Wilson decision has also been undermined by the Second Circuit’s subsequent decision in United States ' Supp. 913 (D. Md.), affirmed sub nom. Ottenheimer vy. Whitaker, 198 F. 2d 289 (C.A. 4), holding that Section 15 permits aban- donment of a vessel without liability only when the wreck occurs without: fault. : | aaa a i tis st tes ss: is gRinah sian peated Aallbel DNR S we J NS Soe ne e ib ied Seis Bite wine RR anae a 22 ther eby avoid personal liability. This right, it is fur- '. ther contended, not only was not altered by the Rivers and Harbors Act, but was ey — by the Act’ (Pet. Br. p.18). At the outset, it. is important to site that even if ‘this argument’ rested on a solid foundation, it could not be relied on by those petitioners who were not the ‘owners of the sunken vessels. Neither Section 10 nor Section 15 limits -its ban on negligently causing ob- structions or causing: vessels to. sink to the owners of the vessels involved. Anyone responsible for the result has engaged in unlawful conduct and is presumptively | liable for removing the wreck or paying the costs. of removal. But,.as we now show, the general maritime _ law has never conferred a right even upon the owner Vessel Owner’s Liability Act of. 1851 precludes the avoidance.of personal liability by negligent parties; ' andthe Rivers and Harbors Act accords with that | tradition - by not exempting from personal coon d persons who negligently sink vessels. | 1. The general maritime law, as interpreted and ‘applied by the American ‘atid English courts, estab- fishes the right of an-owner of a vessel whicli has been sunk without fault on his part to avoid in personam jiability by abandoning his vessel. See The City of Newark v. Mills, 35 F. 24.110 (C.A. 3), certiorari de- nied, 281 U. S. 722; In re Highland Corp., 24 F. 2d 582 (S.D. N.Y. dy ectitvtined: 29 F. 2d 37 (C.A. 2); W heel- don v. United States, 184 F. Supp. 81 (N.D. Calif.) ; Or- ~ rell v. Wilmington Iron Works, 89: F. Supp. 418 te 4 of ‘a negligently sunken vessel to escape personal lia- — bility by abandoning the vessel ; the Limitation of (E.D.N.C.) reversed in part on other grounds:and af-. firmed in part, 185 F. 2d 181. (C.A. 4) ; In the Matter of the Petition of Boat Demand, Inc., 174 F. Supp 668 (D. . Mass.) ; Ball v. Berwind, 29 Fed. 541 (E.D.N.Y.); The ‘Swan, 23 Fed. Cas. 495 (No. 13667) (C.C. S.D.N.Y.); Taylor v. Atlantic Mutual Ins. Co., 37 NvY. 275; The Ella, [1915] P. 111; The Crystal,. [1894] A.€. 508, - [1891-1894] All E.R. 804 (H.L. 1894) ; White'v. Crisp, - 10Ex. D. 312, 156‘Eng. Rep. 463 ( 1854) ; Brown v. Mal- _. lett, 5 C.B. 599, 136 Eng. Rep.' 1013 (Common Pleas — 1848) ; Hancock v. York, N ewcastle & Berwick Ry., 10 C.B. 348 (1850). The courts have established this prin- ciple on the theory that the owner whose ship is sunk | through no fgilt’of his own has suffered enough injury by the loss of his vessel.” See Gulf Coast Transp. Co. v. _Ruddock-Orleans Cypress Co., 17 F. 2d 858 (E.D. : La.) ; Orrell v. Wilmington Iron Works, supra, 89 F. Supp. at p. 424; Hancock v. York, Newcastle & Ber- wick Ry., 10 C.B. 348 (1850). Such a benign policy, of course, does not apply where ‘the sinking of a ship was due to the fault or negligence #f the owner. Accord- ingly, where negligence is involved, as distinguished from unavoidable accident or -natural calamity, the See Hughes, Handbook of Admiralty Law, § 142 (2d ed. 1920). The continuing validity. of this theory may be ques- tioned in light of present: shipping practices which permit a vessel owner to obtain instance not only to cover the value of the loss of his vessel but also\the cost of removing a sunk- ~en vessel. For example, as noted above, p. 6, fn. 8 supra, the sunken barges involved in the Cargill action were covered by petitioner Continental Iffs#rance Co. under a standard type Inland Protection and Indemnity form which included cov- . erage for liability for removal or failure to remove the wrecked insured vessels. ‘ ae o | general mneiritime law did ms" recognize % a right | in the - @wner to absolve himself of in personam liability by abandonment. As stated by the English Court of Ap- peal in’ a case which involved recovery of the costs of removing a negligently sunken vessel: At common law * *:* the'owners were lia- -ble for damage caused by their, negligence—I ay nothing at the moment about: nuisance— d could not escape liability by saying they - had abandoned the vessel. [Dee Conservancy Board v. McConnell, [1928] 2 K.B. 159, ‘163, [1928] All E.R. 554 (0.A.)] *. . _ See In the Matter of the Petition of Boat Demand, Inc., 174\F.. Supp. 668 (D. Mass.); In re Eastern Transp. Co., 102 F. Supp. 913 (D. Md.), affirmed sub - NOM. Ottenhéimer v. Whitaker, 198 F. 2d 289 (C. A. 72Tn Dee, the court held the conservators of a river and the owner of a wharf obstructed by an abandoned negligently sunken vessel could recovér ‘the costs of removal of the vessel i im personam against the owner, based upon non-statutory h- ability, despite the existence of a statute purporting to govern _ “Viability for sunken vessels. The court found “the old com- ". mon Jaw liability remains where damage has been done by-the | negligence of the owner’s servants.” [1928] ‘2 KB. at 164. “-e F, Petitioners, citing primarily English statutes “which exprestly - “impose in personam liability for the negligent sinking of ves- sels, contend that only by express. statutory provision may such liability be created (Pet. Br. p. 35). This completely over- looks ljability- under non-statutory law which the Dee case demonstrates supplements the English statutory provisions; and which, as we show infra pp. 40-45, also supplements the ground for liability in this country ender’ the Rivers aud Harbors Act of 1899. The issue before’ this Court, therefore, ig not merely whether it is proper to imply in personam liabil- ity under the Rivers and Harbors Act, but also whether the Act. abolishes nen-statutory liability. ( Non-statutory ey is: Spy discussed i in Part II of this brief.) ined sia ite als VO alii 6 at FRR cate Lt at Se ial Boa eA Aa ea , AE Sea ytets O ROE EUR You N ni d - 4); Orrell v. Wilmington Iron Works, supra, 89 F. ' Supp. at 421-423; Boston ¢& Hingham Steamboat Co. v. Munson, 117 Mass. 34; -Taylor v. ‘Atlantic : Mutual Ins. Co., 37 N.Y. 275; DeBardélebem Coal Co. v. ‘Cox, 16 Ala. App. 172, 76 So. 409, certiorari denied, . 76 Aja. 553, 76 So. 911; Hancock v: York, * \ Newcastle & Berwick Ry., 10 C.B. 348 (1850); Brown... v. Mallett, 5 C.B. 599, 617, 136 Eng. Rep. 1013 (Com- -. mon Pleas 1848). See plso The Scotland, 105 U. S. 24, 28-29. i The majority opinions in the Bethlehem Steel ¢ case, supra, in the Fourth Circuit, and’ The T&mar case, - supra, in the Ninth Circuit, erroneously prtsume that maritime law sanctioned unrestricted abandonment as a method of escaping in personam. liability, even ~though the ship was sunk due to the owner’s negli- ~ gence.* Both opinions apparently base their presump- ‘tions on Winpenny & Chedester. v, Philadelphia, 65 Pa. 135, and The. Manhattan, 10 F. Supp. 45 (E.D. Pa.), affirmed, 85 F. 2d 427.(C.A. 3), certiorari flenied sub nom. United States v. The Bessemer, 300 U.S. 65g In} In. Winpenny the court dismissed a suit for dam- 23 See also Ray, The , eS of Obstructions from Navigable “f Waters—W ho. Pays?, 34 Ins. Couns. J. 28 (1967 ). | Petitioners (Pet. Br. pp. 20-21) and amici curiae (Am. Cur. Br. pp. 10-12). argue strenuously about the economic signifi-. cance of continuing to recognize liability in such cases, where highly volatile cargoes are a common-place components of pres- * ent day water commerce. Apart from thé availability of insur- - ance, illustrated by the Cargill action, policy considerations militate against expanding the avenues for avoiding liability. ' “The dangers of modern machines make it all the more neces- sary that negligence be discouraged.” Bisso_¥- Inland Water- . ways Ass'n, 349 U.S. 85, 91. 276-833—67——-5 : 7 OR Bais ai A ah ie i reticent tay a nan Nc nny ? * * i ‘ — PRE Ro BEE Oy ASA CA LOLS LT NER ge Rated REE SRR Tg . ; : ne 5 % ‘ I ee TT & EY Le ee A ages against the City so brought by the s _ owner of a vessel that rad struck an abandoned vessel lying submerged in’ the Philadelphia harbor. Under a local law, the city was obligated to keep the harbor free from obstructions. ‘In finding no liability, the * court held the local law inapplicable, due to tlie type of obstruction plaintiff’s. ship had hit. In dicta, the court speculated as to ‘where the su®merged vessek sank ‘and how it was washe@ into the. harbor, and-in the course of its discussion asserted that the owner of a sunken vessel ‘was not liable: for its removal regard- less of the cause of the véssel’s sinking. Significantly, the - British cases cited by the court hold only that a ship-owner who was not at fault in‘ the sinking is not! liable for the spipjs removal.* The district court ‘in The Manhattan,” without @xtendéd discussion and also. in diétum, expressed its approval of the views nar- rated in Winpenny. — : * For example, in Riiy v. Watts, 2 Esp. 675, 676, 170 Eng. Rep. 493 (Assizes 1798), the court held that an indictment ‘ brought by the City of London for a nuisance—a sunken vessel in the River Thames—could not be maintained: since’ the sinking “had been occasioned, not by any default: or willful miscon- duct of the ‘defendant, but by’ accident and misfortune; and that it would be adding to the calamity .to subject: the party: to an indictment, for what had proceeded from. such causes, against which he could ‘not guard, or which he could not pre- vent.” See also Brown v. Mallett, 5 C.B. ‘ 1013, 1021 (Common Pleas 1848) (the owher of a vesselSink . “without any fault of his” is not: liable for its_removal and “therefore is not liable to a vessel that stfuck the wreck). -% The Manhattan involved .removal of a vessel Sr sank | through no fault of its own. See The Manhattan, 3 F Supp. 75 @ D. Pa.). 4 + — \ We submit that the dicta*in these two cases do _ not accurately reflect the principles of maritime law ang, tliat they are contrary to the weight of considered | authority explaining that only an owner who loses his __~ Vessel through no fault of his own may absolve him-” _ self of liability by abandoning his sunken vessel.* _ 2, The maritime principle that the ‘owner of a vessel is liable for his negligence was carried over into statu- ‘tory law by the Limitation of Vessel. Owner’s Liabil- ity Act of 1851.-In 1851, Congress enacted “An Act to Limit a: Vessel Ovgfier’s Liability,” 9 Stat. 635, which as: amended now appears at 46°U.S.C. 181, et seq. (pp. 59-60 infra). That Act, as originally enacted and as it exists today, provides thatthe liability of the owner of any Vessel ‘‘for any los damage, or injury by col- lision, or for ‘any act, matt r, or thing, loss, damage or forfeiture” is limited ‘‘to the interest of such own- er in such vessel, and her fréight then pending,” ‘but only “‘if done, occasioned, or incurred without the . . privity or knowledge of. such owner” (emphasis added). The vessel owner’s right to limit his liabil- _. »*6 Petitioners quote language of Judge Manton in Petition of _ Highlands Navigation Corp., 29 F..2d 37 (C.A. 2), in support of their contention that the general maritime law permits the | avoidance of liability by the abandonment of a negligently sunken. vessel (Pet. Br. p. 19).,Reliance on this case is mis- *. placed, however, as it involved a vessel which the court noted burned and sank without. negligence. See also the opinion ‘of ©. the trial court. 24 F. 2d 582 (S.D,N.Y.). > aS ‘. _- "The Act. was passed by Congress to promote the growth of _ the nation’s shipping industry by encouraging investment ®in ships thrgugh the limitation of. liability. Prior to the passige ' » of this Act, the general maritime law as applied, by American * _ as well as English courts, in cases involving situations other than the abandonment of ships sunk without~fault, recognized . » try . : nae ' . % * o leo” ate ) eo = / i SOO Ete : coe : ity for damage done by his’ vessel. was thus made to ~ | . depend upon his lack of “privity or knowledge” of the ~ eause of the loss; t.¢., in the words of Chief Justice ~ Hughes in American Car & Foundry Co. v. Brassert, 289 U.S. 261, 264, “[f]or his fault, neglect and contracts __ ' the owner remains liable.” * Accordingly, in cases in- volving damages caused.by a sunken vessel, the courts _ have permitted an owner to abandon his vessel and limit his liability to the value of the vessel and the - freight due only where the circumstances demonstrate “*~ no such “fault” or ‘neglect’? of the owner. See The | ; City of Newark v. Mills, 35 F. 2d 110 (C.A. 3), certi- orari denied, 281 U.S. 722; The City of Bangor, 13 F. no general litiitation of liability and thus the owner was held ‘s__ liable én personam for damages caused by negligence although /~ the owner himself‘ was without privity or knowledge of the negligence. See The, Scotland, 105 U.S. 24,28; Stinson v. Wy- man, 23 Fed. Cas. 108, 109 (No. 13,460) (D-: Me.); Walker v. >... Boston Hope Ins. Co.,-80 Mass. 288, 297; Marsden, Collisions, |: * at Sea, 172-173 (London, i0th ed.). See also, Norwich Co. v. ‘Wright, 13 Wall. 104.5 = | : ‘28 Under. the “statutory duty” restriction on the availability, of limitation of liability, an owner cannot avail himself of the 3 protections of the Act to escape the consequences of his ‘breach 4 - of a-statutory duty. See Gilmore & Black, The Zaw of Ad- | maralty § 10-13, at 679 (1957). In The Snug Harbor, 53 F. 2d q ' 407, 410-411 (E.D.N.Y.), affirmed sub nom. United States v. East- - ern Transp. Co., 59 F. 2d 984 (C.A. 2), the court refused to permit - 4 . the owner of a sunken vessel (the government) to limit its liabil- _ ity, because of its violation of Section 15 of the Rivers and Har- bors Act of 1899. And the House of Lords not long ago decided that whether or not an owner may rely on the English equivalent of the gr pores Act to. escape his common law liability for | the cost of’ raising his negligently sunken ship, there is no ques-. tion but that limitation is not permitted when the claim -for costs is&premised on the statutory. liability for negligently creating an obstruction. See’ The Stonedale No. 1, [1955] 2 All E.R. 689, 693 (HLL). “"g _ : an owner cannot escape in personam. liability for his 29 ; Supp. 648 (D. Mass) ; In re Highland Corp., 24 F. 2d 582 (S.D.N.Y.), affirmed, 29 F. 2d 37 (C.A. 2); Hagan. v. City of Richmond, 254 Va. 723, 52 S.E. 385. See, also, The Irving F. Ross, 8 F. 2d 313 (D. Muss.) . . In this light, it becomes clear*that tinder both the general maritime.law and the Limitations Act of 1851 - negligence. by abandoning his vessel." As. we now show, the Rivers and Harbors Act of 1899 did not eee eee eee ORs ph lt, 3. The Grst sentence of Section 15 of the Rivers’and — Harbors Act, as previously noted, makes it unlawful “to voluntarily or carelessly. sink, or permit or cause to be ‘sunk, vessels or other craft in navigable chan- nels.’” The second and final sentence of Section 15 _ then provides: . ilres pecan . _ * The owner béars the burden of proving lack of privity, or Knowledge, See Coryell v. Phipps, 317 U.S. 406, 409-410; . ¢f. The Pennsylvania, 19 Wall. 125, 136. ~ *%°In cases involving corporate vessel owners, the rule is that - “liability may nodtbe limited under the statute where the neg- ligence is that of an éxecutive officer, manager or superintendent whose scope of authority includes. supervision over the phase of the business out of -which the loss or -injury occurred”. Coryell v. Phipps, 317 U.S. 406, citing Spenser Kellog & __ Sons v. Hicks, 285 U.S. 502; see Craig v. Continental Ins Co., * 141 U.S. 688; 646-47, -° 3 a -A general discussion of the “without the privity or know]- edge” condition of limiting liability is found in Gilmore & Black, Law of Admiralty §§ 10-20 to 10-25 (1957). The spe- cific acts of negligence alleged in’ the libels (R. 17, 26-28) are of the type that are imputable to the owner as establishing “privity or knowledge.” “ eee _ Of course the Limitation of Liability Act would in no event be available to immunize those petitioners who were not owners ~ or charterers of the sunken vessels. See 46 U.S.C. 186. por whenevsd a vessel, raft, or other t is | - .. °° -wreeked and sunk:in a navigable channel, acci- ; Phe dentally or otherwise, it shall be the duty of the -- owner of such ,sunken craft ‘immediately _ ** mark it with a buoy or beacon during the day i. + and 4 lighted ‘lantern at night, and to ‘maintain a such marks until the sunken craft is removed -} is: abandoned; and. the neglect or.failure of the — | - said owner so to do shall bé unlawful; and it: ° shall-be the duty of the owner of such sunken craft to.corhmence the immediate removal of | . \ the same, and prosecute. such removal dili- . 4, ~ genthy, and failure to do so shall be considered -as an abondonment of such craft, and subject *the same to removal- by the United States as- provided for in sections ALLAIG, 418, and ee - of this title. _-. | This section is supplemented by Section-19,-33 v. S.C. ’ 414 (set forth pp. 57-58 infra), which provides that ~ when a sunken vessel obstructs navigation ‘‘and such _ obstruction has existed for a longer period than thirty days, or whenever the abandonment of such obstruc- tion can be legally established in a less space of time,”’ «the stinken vessel may be” removed and sold by the Secretary. of the Army at his discretion and the pro- ceeds paid into the Treasury of the United States.” = + Petitioners claim that these: sections ‘‘preserve | (Pet. Br. p. 18) a pre-existing riglit to avoid liability 4 . by abandonment. We have seen, however, that the wri Sah she eas Om DO eb SLI Sete ab oS In an emergency, Section ’ 20, 33 U.S.C. 415 (set forth, pp: 58-59 infra), permits the Secretary to remove a wreck sum- marily, the cost of the removal becoming a lien. on the vessel — and the owner ultimately being required_to pay the cost of * removal or forfeit his interest in the wreck. ' , ‘of 1899 Act will help furnish perspective. Congréss 31 "general maritime law recognized no such right where - the owner had been negligent. The question then arises. | ' whether these. sections were intended. to ereate such a right to avoid im personam liability. The answer _ must‘ be in the negative. The legislative background of the Act, its text, and its purpose, demonstrate that no such right is created; rather, liability for negligence _ Was, continued in accordance with the general -mari- _ time law and the Limitations Act. ae a. A review of the development of the provisions first manifested its concern with the problem of: sunken vessels obstructing the navigability of inland — waterways in Section 4 of the Rivers and Harbors / Act of June-14, 1880, 21 Stat. 180; 197." That section / | ' . »* That section provides: ° he “Whenever hereafter the navigation of any river, lake, harbor, or bay, or other nayigable water of the United States, shall be obstructed or endangered by any sunken vessel or water-craft, it shall be the duty of the Secretary of War, upon satisfactory information thereof, to cause reasonable notice, of not less than . , ‘thirty days, to be given, personally or by publication, at least once a week in the newspaper published nearest the locality of ‘such sunken vessel or craft, to all persons interested. in such vessel or craft, or in the cargo thereof, of the purpose of said Secretary, unless such vessel or craft shall be removed as soon thereafter as practicable by the parties interested therein, to cause the same to be removed. If. such sunken vessel or craft and cargo shall not be removed by the parties interested theréin as soon as practicable after the date of the giving of such notice, ‘ by publication, or after such personal service of notice, asathe case may be, such sunken vessel or craft ‘shall be treated as abandoned and derelict, and the Secretary of War shall pro- ceed to remove the same: Such sunken: vessel or craft and cargo and all property therein when so removed shall, after reasonable hotice of the time and place of sale, be sold ¢o the highest’ bidder or bidders ‘for cash, and the proceeds of such sales shall 4 . — ' % 2 : a. °“f 4 ot means 2 res . iota in —_ ae . t s fase ; eee 2 : re 32 ons ee Ee ak . ’ : provided that when a sunken einai obstructed § a navi- gable body of water, the Secretary of War awas re-. Be AEE PAR Bee Noss eth & intergsted ~ the sunken ‘vessel, or its’ ‘argo, that he .. 4 intended to * feause its removal. If the sunken vessel _ and its. cergo. were not removed ‘fas soon as practi-: cable’’ after the date of notice, the statute declared, ; “such sunken vessel or craft shall be treated as aban- ‘ * . °° doned and derelict, and the Seeretary of War shall “= °° proceed to remove the same.” Although formal legis- lative history,.of this ‘Section is barren,* the congres-" sional intent in enacting it is, we believe, apparent. In terms, Section’4 conferred upon the Secretary of” —_——War-the- right to treat a wreck as “abandoned and _derelic ” so as to enable him to remove it if its owner f . failed to do so. The section was not concerned with conferring upon’: -the vessel owner any right to avoid | liability by abandoning his vessel. In this legislation > | Congress. did not purport, to alter traditional. mari- . : PN SN ANN eat Ca | USA 2b how citi ica yo ~ Limitation Act that the owner of a: sunken vessel _ | could limit his liability to his interest in the vessel zz be deposited in the Treasury of the United States to the credit ~under the direction of the Secretary of War, and to be paid out _ for that purpose on his requisition therefor. * * *”, / *8 As with most legislation relating to obstructions to naviga- _ tion, Section 4 was tacked on to an appropriations bill for river . and harbor dea and construction. Accordingly, this provision is not dealf.with in the congressioril] debates of the pill. And, since the requirement:of a committee report was sus- pended with respect to this bill (see 10 Cong. Rec., Pt. 4, 3437 (1880) ),. we do not have the benefit of the House committee’s views on this bill or the ee section. Ue a . quired to give reasonable notice to all persons . - time responsibilities or revamp the-rule of the 1851: of a fund for the removal of sych obstructions to navigation, . L 7 2 Vows ; ie 33 only if the sinking occurred “without the privtty or knowledge of such owner.” To the contrary, Congress . was concerned only. with establishing the right and immunity of the- Secretary of War to remove a - * . sunken-véssel without incurring liability to its owner; -°. - and it accomplished this purpose by permitting him to treat the vessel as “abandoned and derelict,” leav- ying the question of the right of vessel Owner to limit _~ his liability to the Limitation of Liability At. In 1882, Congress “enlarged” the power granted the. : 7 Secretary of .War in Section 4 of the 1880 Act by au- - thorizing him to sell a sunken vessel before it was - raised or removed. Rivers and Harbors ‘Act of "1882, 22 Stat. 191, 208-209." Then, in 1890, without repeal- ing either the: 1880: or 1882: provisions, Congress pro- vided in Seetion 8 of the River and Harbor Act.-of that year (26 Stat. 426,454): © ve That all wrecks of vessels ‘and other obstruc- — tions to the navigation of.any port, roadstead, aa. harbor, or navigable river, or other navigable _ waters of the United States, which may have been permitted by the owners thereof or the - ‘\"" parties by whom they were caused to remain to 3 ** That.provision stated: “[T]he power and authority granted ' to the Secretary of War urider and by virtue of section four of * the act of Congress approved June fourteenth, eighteen hundred and eighty, relating to wrecks and ‘sunken vessels be, ‘and the same are. hereby, dhlarged so the Secretary of War may,inhis. _ discretion, sell and dispose of any suth sunken craft, vessel, or * cargo, or property therein, before the raising or removal there- of, according to the same regulations that are in the said -act prescribed’ for the sale. of the same after the reffroval’ thereof; and all laws and parts of laws inconsistent herewith are hereby ' repealed.” : = “ \ \. x \ ¥ . : v . *\\ . , e \ > ° PTA ee Diente IO REE : PN Se LOB SAS Me EOD Beg RCT, Bs the injury of commerce and navigation for a . ‘longer period than two months, shall be subject — to be broken up and removed by’ the Secretary _ _of War, without liability for aR. to the owner's of the s same. In both the 1882 and 1890 Acts—as was the gase with the 1880 Act—Congress ignored the possible liability of the vessel owner, ‘leaving that question to the ‘Limitation- of Liability Aét. Again, the congressional purpose was: merely. to devise an expedient method of - enabling the Secretary of War to remove wrecked ves- _ sels without exposing the government to claims. for - damages brought by. the owner of the wrecked vessel. * Finally, in 1899 Congres enacted the legislation with’ which we are now conceryed. As already’ noted APP. -/ 12-18 supra), this Act made “rio essential changes in *- » the existing law,”’ being only a “codifjeation of existing ' Jaws pertaining . to Yivers and harbors.’’» 32 Cong.. Ree., Pt. 3, 2923: (1899). Congress eschewed any inten- -/tion to work substantive alterations in the maritime ‘law, and could not, therefore, have Gnterlded that the Act enlarge the rights df vessel owners. Accordingly, when Section 15 of the Rivers and. ‘Harbors Act of © 1899 declared that “* *.*‘it shall be the duty of the - owner , of such sunken craft to’ commence the im- mediate removal of "the same, and prosecute such me moval | diligently; and failure to do. so shall be con- sidered as an abandonment of such craft, and subject . ‘the same- to: removal by the United States * * *;”’ it ‘was not conferring a novel absolute right of aban- donment upon the: vessel owner. Instead, Congress left. “unchanged the — of general maritime: law and. > 4 rf / , - * 4 . ; ad 2 . 3 4 ° - ” ° A eee 35 * -*s the Limitations ‘nh that —_ a vessel _ owner whe is, not at fault may absolve him&elf of in a5 ced lia-" bility by abandoning his vessel. i’ | pe es ' b. The language employed in the provisions deal- ing with abandonment suggests that Congress was concerned solely with th question of the liability of the Secretary of War for the “removal of vessels, rather thari the limitation of liability of vessel own: ° ers. The provisions only “regulate the relationship - ~ between the Secretary and the owner of a wreck,”’ The ' Texmar, supra, 319 F. 2d at 524 (Browning, J., ‘dis- pagent and result ‘in the ‘‘creation of a right i in fa- or of the United States’ and “not the grant of a per- sonal immunity.to the shipowner”’ Bethlehem Steel, _supra, 374 F. 2d at 671 (Sobeloff; J., dissenting). Accordingly, only the government—not vessel own- ers—may Yoke these provisions as a defense to lia- bility. Seq The Port Hunter, 6° F. Supp. 1009 (D. Mass.); Gulf Coast Transp. Co. ¥. Ruddock- Orleans : Cy ess Co., 17 F. 2d 858-(E.D. La.).— \ oreover, specific provisions of the Rivers and - Harbors Act do strongly indicate that Congress con- templated liability for those responsible for the_neg- . ligent sinlting of vessels. Section 15 of. the Act, d as. ing. it, unlawful to “voluntarily or carelessly” sink ‘a ** The majority opinion (per Judge Madden of the Court of Claims sitting by designation ; Circhit Judge Duniway wrote a Separate. concurring opinion), expressed the belief that the Rivers and Harbors Act permitted a’ negligent vessel owner to ’ abandon with impunity. As J udge- Browning noted in his dis- sent, 319 F. 2d at 525, fn. 11, the cases relied upon by the majority and catalogued by petitioners, and amici curiae either involved non-negligent vessel. owners or never reached the i issue of limita- . tion of ee due to abandonment. / NN, _- i . ‘ 4 re ey ee © ene a as i at x . - gl 86 vessel, groups ‘the negligent with the willful. ‘This juxtapositioning militates against: different treatment with respect to personal. liability. Bethlehem Steel,. supra,,374 F. 2d at 670 (dissenting opinion). Since . it was settled by United-States v. Hall, supra, prior to the 1899 compilation, that one who willfully sinks a vessel is subject to in personam liability, the statu- _ tory grouping indicates that the same liability follows for carelessly sinking a vessel. In addition, the first sentenbe of Section 15 explicitly proseribes the volufis .. | tary’ or careless sinking of vessels in a navigable chan- pe, nel. ‘Construing the reference to abandonment in the | next.. sentence as absolving such owners of i, ~ would make the provisions of. Section 15 inconsistent - with each other, for this construction would in effect "+ perinit vessel owners to violate the: fifst sentence’s clear prohibition with impunity. Avoidance of such a contradiction is farther reason why the Act should : be read as allowing: only .the owner of a vessel that stare sinks without fault to avoid liability by abandon- __ ment.” See In re nines oo Transp. Co., 10aF. Supp. -yeee by: the Fifth Circuit (R. 162), hes inion: Hack Gant - Congress appropriates funds “for removing sunken Wessels ob- _ structing navigation, pursuant to 31: U.S.C. 725a(b) (14), does . not indicate that Congress believes the government 4s required to bear the ‘Anal costs of removing negligently, sunkely vessels, The government may use such funds to salvage vessels whose | owners are wer rae or insolvent,-or to salvage. vessels which are sunk other than “voluntarily or carelessly”. Furthe , as the WYCHEM action ‘illustrates, where thé government decides not: to delay in removing a wreck, public fiindg must bé niente long before the costs can be recovered from those ultimately . __ liable. Similarly, the mere fact that In the 19th century Congress _ from time to time enacted appropriation bills.to raise specified — ~ wea e* kb fof * its ciple Myo aa hacacea te betbsins lar laa ; Oy 37 eee e ; 913 (D. Md.), affirmed sub nom. Ottenheimer v. Whit- * aker, 198 F, 24 289 (C.A. 4); In the Matt r of the . Petition of Boat Demand, Inc., 174 F. Supp. 668 (D.- _ Mass.) ; Hagan v. City of Richmond, 104 Vap723, 734, o2 S.E. 385.” 3 5 ee ce. The Rivers and.Harbors Act ‘was enacted to keep the nation’s navigable waters free from obstructions. _ Construing the provisions dealing with abandonment as creating an unqualified right of abandonment in negligent vessel owners is searcely conducive to this end. Such a, construction would impute to. Congress. ‘an intention ‘inconsistent: with the great design of _~ this legislation.” Republic Steel, supra, 362 U.S. at _ 492. In addition, it would create a conflict with the ex- - plicit policy expressed by Congress in the Limitations - Act.” Nothing in the. history or text of the congres- wrecks does not indicate that’ Congress believed the government. - Was required to bear the costs of removal of négligently sunken _ vessels. These. appropriation bills, cited in petitioners’ brief, pp. . 8-9, may have cove “the raising of wrecks sunk without fault. ° Or Congress miht have decided to relieve a ship owner of ‘ liability in a particular instance, - ; : ' _ _ * The petitioners argue (Pet. Br. p. 20) that it has been the policy of Congress to encourage water-borne commerce and that. -- placing the burden of thé cost of removal of negligently sunken - . vessels upon the government is part of that policy. Therefore, it is their position, eyen, though the burden, of imposing liabil- ity. upon operators of vessels may be eased by insurance cover- age to pay removal costs, see p. 6, fn. &, and p. 93, fn. 21, supra, that’ operators ‘of ‘vessels, -unlike operators of all other © common carriers, %re immune from, personal liability for dam- age caused by their negligence. .As Judge Sobeloff noted in his dissent in Bethlehem Steel; supra, 374 F.2d at 672: “I have no quarrel * * * that the Government has long followed policies vere - ” aii sional plan permits this result: wee + d. Permitting the imposition of in’ pereonem lia- ° * bility on negligent vessel owners not only harmonizes ~ all the provisions of the Act, and promotes its pur- ' poses, but is the only interpretation. that is consistent ..: gvith. that: given the Act by the Secretary of War 4 within two years after the passage of the statute..In \s . ‘ eae. 1901, the Secretary of War, charged withthe duty. of . administering the relevant portions of the Act, was j | asked where ‘the burden lay for the removal of a _ _.. Vata ceil iO thal sa ite sin, . M - oe SLEALOLD DG ben ale CIE wii ont alga hits willie Kh Sida isenntuiited bidde ¢ St iM caida ie ARACEAE RGR Se Lech hes. Bate oe ° . a oe Rn, ON ae eT Ue ee CET eee ee ~~ \ ae Of. Udall v. Fallman, 380 U.S. 1, 16; Federal Housing - Administration v. The Darlington, des: 358 U.S. 84. In sum, the Rivers and Harbors Act makes the owner-petitioners liable in personam for the removal or cost of removal of vessels sunk due to their negli- gence, and they cannot avoid this statutory liability by» abandoning their vessels. The liability of those peti- tioriérs* who were not owners, but whose negligence also precipitated the ees 4 is unquestionable. Il. APART FROM STATUTORY LAW THOSE RESPONSIBLE FOR THE NEGLIGENT SINKING OF A. VESSEL IN NAVIGABLE WATERS ARE REQUIRED TO REMOVE. THE VESSEL OR PAY . THE COST OF REMOVAL For the reasons outlined in-Point I above, we submit that the court below co bctly conchided that the reme- dies sought by the government are readily inferable from the Rivers and Harbors Act. While we believe this Court need go no further, we now show that there .. is an additional independent ground for. affirmanice of the judgment of the court of appeals. Under the non-statutory law, not displaced or preempted by the Rivers and Harbors Act, the government has a right to compel those whose negligence causes a: vessel to sink in navigable waters to remove the veasel of, pay the cost of removal. - A. THE RIVERS AND manned ACT DOES NOT PREEMPT NON- STATUTORY GROUNDS OF LIABILITY _~ N othing in the Rivers and Harbors Act, or in any | “of the predecessor legislation, indicates that Congress ‘intended that the statutory scheme should’ constitute the sole corpus of law qoreenene: the — and duties - 41 arising from the use of, inland waterways. The 1899 Act was. the result of a direction to the Secretary of - War to’ compile all the “general laws that have been enacted from time to time by Congress for the main- tenance, protection, and preservation of the navigable waters: of the United States * * *.”” H. Doe. No. “ _ 293, 54th Cong., 2d Sess. (1897). (Emphasis addéd.) As we have already noted,’ this Act was not intended tq alter the substance of pre-existing law, but was de- . signed. merely. to organize and collate the legislative - " pronouncements in’ this area. Furthermore, the prime focus of the development: of the rivers and harbors statutes was to assert the federal interest in-the navi- _ gable waters ‘and to clarify some of the relations be- _ tween the government and the users of these: waters. There was certainly no hint that anything was being ‘done to constrict of replace the existing responsibili- ‘ties of persons engaged in. water-borne commerce, ex- ‘cept insofar as inconsistent with the legislative — _ jJudgments.*” oreo. yaa i : ‘The English experience is illustrative. In 1847 Par- liament passed the Harbours, Docks, and Piers Clauses Act, 32 & 33 Vict. ch. ¢., § 96, authorizing harbourmas- ~~ ters to remove wrecks and recover the costs of removal ‘ from the owner. Yet, in a’ variety of contexts, English *° Directing the abatement of an obstruction to the naviga- bility of New York harbor, the New York Court of Appeals . explained: “A statutory remedy never takes away a previous remedy at common law, unless such an intention is disclosed, but is always held to be cumulative merely.” People v. Vanderbilt, . - - 26 N.Y. 287, 294-295. ve a ay pas En Be $ courts have ruled that this act, and the special local acts that conform to it, did not replace the common law ° prohibition on wilfully or negligently. obstructing har- bors or rivers“ or preclude resort-to ‘ancient non- statutory remedies. This survival of non-statutory rights and liabilities was - ‘Implicit in The Crystal, [1894] A.C. 508, 516, [1891-1894] All E.R. 804- (H.L.); | ~ and was made the express holding of the Court of Appeal in Dee Conservancy Board v. McConneil, [1928] 2 K.B. 159, 163-66, [1928] All E.R. 554 (Ct. Appl. )s where the court ruled that, irrespective of the law and the ensuing liability could not be retroac- tively purged. by abandoning the vessel. That both statutory and non-statutory grounds for liability exist’ side by’ side is. well recognized now in England. Seé , . The Stonedale No. 1, [19554 2 All E.R: 689, 693 _ - (HLL) ; The Liverpool (No. ’), [1960] 3 All E.R.307,, 311 (Ct. Appl.). : . We submit that the same geil co-existence between ‘thése two sources of law should be recognized in the United States also: The Rivers and Harbors. . Act of 1899, as read by this Court in Republic Steel, * a supra, 362 U.S. at 486, was not an exhaustive defi- . nition of rights and remedies, but was a compilation of legislative pronouncements on the interests of the Dec States in the navigable waters. The Act made “no essential changes in the existing law”. Ibid. It “Bee Wisdom, Obstructions In Rivers, 119 Just. p. 846 v7, 1955) ; Desty, A Aanual of ine: ‘Law Relating to Shipping and Admiralty § 392 (1879). » ; ‘did nét, we submit, repeal or supersede the non-statu- tory rights asserted here, but rather left them intact.” _ Contrary to petitioners’ assertion (Pet. Br. p. 37), the decision of this Court in Willamette Iron Bridge Go. v. Hatch, 125 U.S. 1, does not hekd that there are no federal non-statutory rights that the. government may assert nor does it preclude the United States from invoking non-statutory relief.. The Willamette : At case involved the erection of a bridge across the Willamette River and the ‘issué was whether the con- — a struction _¢ could. be-enjoined by-a Dill it in equity in a’ - federal court as a violation of the Act of. Congress ad- mitting Oregon,to the Union. In considering whether, if that act could not ‘apply to the construction of ‘the. bridge, the case was one arising under the Constitu- tion or laws of the United States so as to confer j juris- _ diction on a federal court sitting in equity in a non- diversity case, it was stated, 125 U.S. at 8: Pplabiaite —« The power of Congress to pass laws for the seglbtion of the’ navigation of public rivers, and to prevent any and all obstructions therein, is not questioned. But until it does pass some such law, there is no common law of the United © States which. prohibits obstructions and nui- sances in navigable rivers, unless it be the mari- ; time law, administened hy the. courts of ad- e, -miralty and marine jurisdiction. No precedent, . Tn fact, the form of repealer inserted into the 1899 Act. (see>’ - 80 Stat. 1155) was of the nineteenth- -century style which did * not repeal by implication, yg intact existing consistent laws. See Henderson’s Tobacco,.11 Wall. 652, 656. , however, exists for the enforcement of any such . Jaw; and if such law could be enforced, (a point ‘ ‘ which we do not undertake to decide,) it:would » _ not avail to sustain the bill in equity filed m the original: case. [Emphasis added.]. ~~ 5 Immediately after ‘the decision—and as a diréct result of it—Congress extended the interest of the United States to all its.navigable waters by enacting the Rivets and Harbors Act of 1890, 26 Stat. 426, 454. See, also, In re Debs, 158 U.S. 564, 586. When Congress, by the 1890 Att, extended the. regulatory, interest of the United States to include all navigable - waters, the traditional rights of the sovereign attached, . _, and the principles of maritime law were “federalized”’ _ » and made the subject of application and ‘development by the federal courts. Moreover, as was expressly noted in Willamette, the rationale was. concerned ¢ solely with the relief a federal court of equity could ‘grant, since the issue of what relief could be granted by a federal court Sitting in admiralty and applying - principles of maritime law was not before the court. A further factor making inapplicable the Court’s finding in Willamette that relief was unavailable is the-,existence of proprietary rights of the, United States arising out of improvements to the Mississippi -- River. The Willamette decision made clear that had ** That statute is the predecessor of the present statute enacted in 1899 and was introduced in Congress by Senator Dolph who had represented the defeated party in the Wéllamette Bridge case. The debates show that the Act was intended to remedy ‘the result of that decision. 21 Cong. Rec., Pt. 9, pp. 8604-8605 -(1890). Asi this Court remarked in Republic Steel, supra, 362 US. at 488, the legislation was intended “to fill the gap created by Willamette * * *,” : : ° . ’ wv iade OTR A SBE ENE BNI oi Nt UNO BAe AS Ma. % . . eq eer Vp ee ye eee ee aah * Seen, CEPR ee rey a there been “any interference with the operations, con- — structions, or improvements made b¥ the general ‘gov- ernment” a federal equity court would have been able _ -—_te grant relief to remove the obstruction causing the interference.. 125 U.S. at 13-14. Thus, Willamette in no way undercuts the existence of a body of non- overs statutory federal law or precludes the United States - ' from resorting to'this distinct sourve of rights to-pro- tect its ere and proprietary intérests, (see R. We i. The remaining inquiry, then, is to ascertain es rai te nature of the non-statutory rights: on which sual gov- ° _ ertiynént may rely, | com art ? 4 B.. PETITIONERS? NEGLIGENCE CREATED TPMIC « - NUISANCES WHICH 2 THEY MUST ABATE OR PAY THE COST OF ABATING. At common law, the creation of an obstruction i in a publie highway, including a navigable river,* was - deemed a public nuisance. Mayor et al. of Geo -getown ~v. Alexandria Canal Co., 12 Pet. 91, 97; see Prosser, :Torts, 401-402 (2d*ed: 1955) ; ‘Commer, Substantive and Remedial Pr oblems in Preventing Interferences ‘with Navigation: ‘The Republic Steel Case, 59 Colum. — L. Rev. 1065, 1067 (1959). This pringjple applies when ‘the obstruction in the ‘iver is a vessel, unlaw fully | moored or sunk. See F. S. Royster Guano Co. v. Outten, , 226 Fed. 484, 486 (C.A. 4) ; Carver v. San Pedro, L. =.” & S.L.R., 151 Fed. 334 (C.C. S.D. Calif.).; The Ella, — [1915] P. 111; King v. Ward, 6:Ad. & El. 384 (K.B. 1836); Rose v. Miles, 4 Miles & Selwyn 101 CBB. “See 33 U.S.C. 10: “All the: navigable ‘riyers * * “f in’ the former Territories of Orleans and Lonisiana shall be and for- ever remain public highways.’ , s rd WP iin. Men. Pandas 2 46 1813); 4 ‘Shearmen ‘& Redfield, Negligence, p. 1866 (rev. ed 1941). See also United States v. Hall,.63 Fed. 472, 474 (C.A. 1); Boston& Hingham Steamboat Co. v. Munson, 117 Mass. 34; Miller v. Chatterton, 46 Minn. 338, 48 N.W. 1109; Tininas. Russell, 9D & R566 (K.B. 1827) ; King v. Watts, ‘2 Esp. =, 170 bees — ha (Assizes, 1798). From the earliest times, courts ales exercised . “injunctive powers” to compel those responsible for creating a’ nuisance by obstructing a navigable river _ to abate the nuisance and remove. the obstruction. See, e.g., Mayor e€ al. De v. Alexandria Canal: Co., 12 Pet. 91, 97; People v. Gold Run Ditch - dé Mining Co., 66 Cal. 138, 150, 4Pae. 1152; Vielthn v. Board of County Comm/’rs, 96 Minn. 276, 104 N.W. 1089; ; Attorney-General v. Earl of snsdale, 20 L.T. 64, - 67 (V.C. 1868); Attorney-General v. Terry, L.R29 Ch. . 423, 432 (Ch. App. 1874) ; Attorney-General v. Par- meter, 10 Pricé 378, 410-411 (Ex. 1811), affirmed sub nom. Parmeter v. Gibbs, 10 Price 412 (H.L. 1813) ; 2 Story, Equity Jurisprudence § 1248 (14th ed. 1918). Generally, a person suffering specific damage because of a public nuisance may abate the nuisance himself and recover the costs. See,. ¢.g., City of Harrisonville v. '- W. S. Dickey Clay Mfg. Co., 61 F. 2d 210, 213 (CA. 8), raversed on. other. grounds, 289 U.S. 334; City” of Concord vy. Burlegih, 67 N.H. 106, 36 Atl 606: State of Texas V. Goodnight, ‘70 Tex. 682,. 11 Sw. 119; | Barclay Vv. Commonwealth, 25 Pa. 503; 3 Sedgwick, ra 2 p. 1958 (9th. ed). See, also, Restatement a oS ae “ cs . 47 fs Restitution § 115 (1937 ed. ). "Thus, an owner of ‘a neg - Jigently sunken vessel can. be compelled to abate the ,- ae nuisance so created or to pay the cost of ‘pemoval of » the vessel by others. As stated by the English admiralty ” court in The Ella, [1915] P. 111,.121: ce , Moreover, by the fault: of the defendants: or their servants, a public’ nuisance was created -by the obstruction of the channel, and the ex- penditure of money by the harbor authority. in abating the nuisance, whether pursuant to a right, or in performance of an obligation, con- . stituted special damage [citation omitted]. Accordingly, I am of the’ opinion that the defendants are liable tegnake good to the plain-. — * tiffs the expenses aa by them in buoying, " lighting, marking, and subsequently removing the wreck by blowing it up, avhether the case is regarded from the point of view of the breach _. of duty or negligence of the defendants, or from : te that of a public nuisance caused through their \ \ fault; % & # 45 fh . . 5 Besides creating an abatable nuisance, negligence’ resulting in the sinking of a vessel also constitutes a’ maritime tort. “Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable* waters, is of. . ' admiralty cognizance.” Thé Plymouth, 3 Wall. 20, 36; see The. Liverpool (No. 2), [1960] 3 All E.R. 307, 311 (Ct. Appl). The instant libels thus also sounded in tort (See R. 12-13, 17, 20-21, 26-28). Cf. Miller v. Catterton, 46 Minn. 338, 48 N.W. 1109 - (1891); Rose v, Miles, 4 Miles & Selwyn 101 (K.B. 1815) ; com- pare In the Matter of the Petitién of Boat~Demand, Inc., 174 F. Supp. 668 (D. Masy) ; Piscataqua Navigcd Co. v. New York, N.H. & H.R., 89 Fed. 362 (D. Mass.); Boston v. Bingham | Steamboat Co. v. Munson, 117 Mass. 34; People v. Gold Run Ditch sa di Co., 66 Cal. 138, 147, 4 Beas 1152. . ° ' WE tits i” ; Se Ee Te RL ete Naa ee! ss » . Baths ee oe . ¢, . : 48 2 5 & ® C. THE UNITED STATES IS ENTITLED TO COMPEL ABATEMENT OF A NUISANCE IN NAVIGABLE WATERS OR TO RECOVER THE COSTS OF “ABATEMENT | a | . : ; f ee E : oe ~ . Because of its interest in navigable rivers, the United “ States is entitled’ to invoke the body of non-statutory law outlined above to compel abatement of the nui- sances created by petitioners, or recover the reasonable costs of abating the npisances itself. thé United States« has a twofold interest in the Mississippi River, regu- « Tatory and proprietary.” Since it has long been i . _ that in any area in which the United States hfs a regulatory or proprietary- interest, it has the concomi- tant right to protect and maintain that intérest, the ' United States has the inherent non-statutory right to, . compel the abatement of. the nuisances created. by ’ petitioners, or to recover the costs of abating it. See Cotiqn v. United States, 11 How. 228 ; United States v. “ San Jacinto Tin Co., 125 U.S, 273; In ré Debs, 158 U.S: « 564. See, also, Sanitary District v. United States, 266 ‘U.S, 405, 425-426; United States v. Republic Steel, * supra. Peto tee ae ny , The regulatory interest of the United States arises primarily from the power conferred upon it by Ar- * . ticle I, Section 8, of the Constitution “To regulate * ' Commerce with foreign Nations, ay@ among the sev- eral States.’’ Pursuant: to this authority, the owe . States has engaged in exterfsive regulation of navi | tion on the rivers of the-nation (see, ¢.g;, Title 33 of. ° the United States Code) and has acquired and as- ** Also involved is the inferest: of the-United States in pro-,,. tecting te health and welfare of jits citizens against the perils — a- of the 2,220,000 pounds of chlorine gas. Cf. Inve Debs, 158 |. US. 564, 584. 7 a ; : ; . : . kati Fa : a a oe - ‘> | 49 serted an interest in keeping navigable waters free’ PR, obstructions. This interest is sufficient.to permit the “* Attorney, General “‘by virtue of his office” to bring - ‘a suit ng enjoin and remove an obstruction and no, statute is’ necessary to authorize the suit.’? Sanitary ' District v. United States, supra, 266 (U.«. S. at 426 ; 9 Republic Steel, su pra, 362 U. S. at 492; Coosuw Mi ining ‘Oo. v. South Carolina; 144 USS.- - 550, 566; Pennsyl- vania V.' Wheeling & Belmont Bridge Co., 13 How. 518, 063; see United States v, Hall, supra, 63 Fed. at 473- 474; North Bloomfield Gravel Mining Co. v. United : ‘States, supra, 88 Fed. at 677-678 ; ef. In re. Debs, , supra, 158.U.S. at 586; compare The Ella, [1915] P. 11; Attorney-General V. sJohnson, 2 Wils. Ch. 87, | + 37 how: Rep. 240 (Ch. 1819). As this Court stated in : DV nited. States v. Sdn. Jacinto Tin Co., shpra, 125 US. at 279, even absent. specific statutory authority, the tyorney General _May institute a suit to assert the . _. interests of ‘the United States, since he ‘‘is undoubt- - edly the. officer. who: has charge of the institution ‘and conduct of the. pleas of ‘the United States, and of the litigation which is, necessary “to establish the rights of the government.” Similarly, the United States through the Attoiney General may assert its right and duty to protect its proprietary interest in the nation’s waterways. The _ navigable waters are the ‘property of the nation’’ in the charge of: the United States government. I n re Debs, oupne, 8 U.S. at 586, quoting Gilman v. Phila- / delphia, 3 . 713, 724; see, also, Sanitary Dis- trict v. : Unite pease supra, 266 U.S. 425. Any in- jury to the navigable capacity of the waters is an £ ‘“‘injury to property is” North Bloomfield Gravel States, supra, 88. Fed. at. 677, Mining Co. v. Unite Moreover, the United States has a proprietary inter- est in the Mississippi River due to the expenditures of monies for various river improvements. As the libel in the WYCHEM case alleges,-the United States has - made substantial improvements to the Mississippi to * : : Ry fe ee Cee ee - APPENDIX . 1. The Rivers and Harbors Act of March 3, 1899, 30 - Stat. 11 51, et seq., as amended, 33 U.S.C. 401, et 0%. ae provides i in. pertinent part: i Section 10, 33 U.S.C. 403: Obstruction of. ‘navigable waters gener ally; wharves; piers, ete.; excavations and filling in. © The creation of any obstruction not affirma- tively authorized 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, 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 | eS- ‘tablished harbor lines, or where’no harbor lines have been established, except on plans recom- .- mended by the Chief of Engineers and author- : ized by the Secretary of the Army; and it shall * not be lawful to excavate or fill, or in any man- ner to alter or modify the course, location, con- — dition, 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, unless the work has been recom- mended by the Chief of Engineers and author- ized by the Secretary of. the sites prior to be- ginning the same. * * ci. e - * Section 12, 33 U.S.C. 406: _ Penalty for. wrongful construction of bridges, piers, etc.; removal of structures. Every person and ev ery corporation that shall violate any of the een of sections 401, (53) . 0 ID indi eds FS ee so Wide agent aint imatehaa ean sk 8 inch Ed OMe ae NF pasa dtca viidinla Dia tanned ti | Sects 15, 3 UBC. ped 54 403, arid 404 of this title’ or any rule or regula- _ tion made by the Secretary of the Army in pursuance of the provisions of. section 404 of _ this title shall be deemed guilty of a misdemean- - or, and on conviction thereof shall be punished by a fine not exceeding $2, 500 nor less. than $500, or by imprisonment (in the ease of a nat- * ural person) not exceeding one-year, or by 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 of the said sections may be enforced . by the injunction of any district court exercis- © ing jurisdiction in any district in which such structures may exist, and proper proceedings to _ this end may be. instituted under ‘the direction of. ” pee ee of the United States. * Obstruction of navigable waters by vessels; floating timber; marking and removal of sunken. vessels. 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 volun- | tarily 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: navi-. - gated by steamboats. in such manner as to. — obstruct, impede, or endanger navigation. And whenever a vessel, raft, or other eraft is . wrecked and sunk in a navigable channel, acci- dentally or otherwise, ‘it shall be the duty of - the owner of such sunken craft to immediately mark it with a-buoy or beacon during the day and a lighted lantern at night, and to “maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it Shall be the duty i the owner of such sunken * wen rn Wares iatl ened. 6 Nm avoter er ae . eraft to eommence the immediate removal of '-the same, and prosecute such removal diligent- ly, and failure to do so shall be cOnsidered as an abandonment of such eraft, and subject the, same to removal by the United States as pro- - vided for in sections 411-416, 418, and 502 of : this title. - Mi yey Section 16, 33 U.S.C. 411: | “Penalty for wrongful deposit of refuse; * use of or injury to harbor improvements, and obstruction of navigable waters generally. ~ | Every person and every corporation that shall violate, or that shall knowingly aid, abet," - ’. authorizé, or instigate a violation of the provi- sions 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 im- prisonment (in the case of a natural person) for not .less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine iving infor- to be paid tothe person or persons gi -mation which shall lead to conviction. Section 16, 33 U.S.C. 412: | | Liability 3of masters, pilots, and so forth, and of Wessels engaged in violations. Any and every master, pilot, and engineer, or person or persons acting in such capacity, re- spectively, on board of any ‘boat or vessel who shall knowingly engage in towing. any scow, boat, or vessel loaded with any material speci- fied in section 407 of this title to any point or place of deposit or discharge in any harbor or _ navigable water, elsewhere than within the limits. defined and permitted by the Secretary of the Army,:or who shall willfully injure or destroy any work of the United States con- _ templated in section 408 of this title, or who shall willfully obstruct the channel of any oe Pee ap) eee eee ee : ‘ r ee rt ae a ee waterway in the manner eoritemplated in sec- tion 409 of this title, shall be deemed guilty a: violation of sections 401, 408, 404, 406, 407, 408, 409, 411-416, 418, 502, 549, 686, and 687 of this title, and shall upon conviction be . punished as ’ provided in section 411 of this title, arid shall also have his license revoked or suspended for a term to be fixed by the judge before whom tried and convicted. And any boat, vessel, scow, raft, or other craft used or em- ployed. in violating any of the provisions of ' sections 407, 408, and 409 of this title shall, be liable for the pecuniary penalties specified in section 411 of this title, and in addition thereto | for the amount of the damages done by said boat, vessel, scow, raft, or other ‘craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the har- -- bor or waterway in which the damage oc- curred, and said hoat, vessel, scow,:raft, or other craft ‘may be proceeded against summarily by way of libel in any district equrt of the United | States having jurisdiction thereof. Section 17, 33 U.S.C. 413: Duty of United States attornes ys and other Federal officers in enforcement of pro- wisions; arrest of offenders. - “The Department of Justice shall conduct the * om legal proceedings necessary to enforce the pro- visions-of sections 401, 403, 404, 406, 407, 408, 409, | 411, 549, 686, and 68% of this title; and it shall he | uty’ of United States attorneys to vigor- ously -prosecute all offenders against the ‘same whenever requested to do so by the Army or oe any of the officials hereinafter: desi®nated, and .« it shall furthermore be the duty of said United ' States attorneys to report’ to the Attorney Gen- eral of the United States the action taken by - him against {offenders so reported, anda tran- seript of such reports shall be trartsmitted: to the Secretary of the Army by the Attorney Gen- eral; and for the better enforcement of the * —_ ° ; * i - ye ‘ a oe ee Th the said sections, or who may violate any of \ > said provisions and to facilitate the detection and bringing to punishment of such offenders, the officers: and agents of the United States in charge of river and harbor improvements, and the assistant engineers and inspectors employed under them by authority of the Secretary of. the Army, and the United States collectors of -eustoms and other revenue officers shall have power-and authority to swear out process, and to arrest and take into custody, with or without - process, any person or persons who may com- mit any of the acts or offenses prohibited by the provisions of the same: Provided, That-no person shall be arrested without process for any . offense not committed in the presence of some one of the aforesaid officials: And provided further, That whenever any arrest is- made under such sections, the person’ so arrested - shall be brought forthwith before a commis- sioner, judge, or court of the United States for examination of the offense alleged against,him ; and such ‘commissioner, judge, or court shall proceed in respeet thereto as authorized by law in case of crimes er ga United States. Section 19, 33 U.S.C. 414: Removal by Secretary of the Army of sunken water craft generally. Whenever the navigation of ‘any river, lake, harbor, sound, bay, canal, or other navigable waters. of the United States shall be obstructed | or endangered by any any vessel, boat, water eraft, raft, or other sifhilar obstruction, and such obstruction has existed ‘for a longer period han thirty days, or whenever the abandonment TEE ~., ~£ such obstruction can be legally established -In a less spate 6f ti 8 time,.the sunken vessel; boat, water craft, raft, or othér. obstruction shall be subject to be broken up, renioved, sold, or other- wise disposed of by the Secretary of the Army at his discretion, without liability for any _ damage to the owners of the same: Provided, is 2 g § a A | x 58 That in his. discretion, the Seeretary of the _ Army. may cause reasonable notice of such ob- struction of not less than thirty days, unless the legal abandonment of the obstruction can be established in a less time, to be .given b¥ publication, addressed “To whom it may con- cern,”’ in a newspaper published nearest to the | locality of the obstruction, requiring the, re- moval thereof: And ovided alse, That the Secretary of the Army may, in his distretion, | at or after the time of giving such ‘notice, cause sealed proposals to-be solicited by public ‘adver- tisement, giving reasonable notice of not less. than ten days, for the removal of such obstruc-_ . tion.as soon as possible after the expiration of the above “specified thirty days’ notice in case it has not in the meantime been so removed, these proposals and contracts, at his discretion, _to be conditioned that. such vessel, boat, water craft, raft, or other obstruction, ‘and all cargo and property contained therein, shall become the property of ‘the contractor, and the con- tract 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: Pro- ..° vided further, That any money received from the sale of any such wreck, or from any con- actor for the removal of wrecks, under this pa ph shall be covered into the Tréasury of the United States. ection -20,.33 U.S.C. 415: Summary removal of water. craft obstruct- : ing navigation. | ‘Under emergency, in the case of any vessel, boat, water craft, or raft, or other similiar ob- struction, . sinking or grounding, or being un- % '- necessarily delayed in any Government canal or lock, or in any navigable waters mentioned — in section 414°of this title, in such manner as to - stop, seriously interfere with, or specially en- danger navigation, i in the opinion of the Secre- é me " 59: tary of the Army, or any agent of the United States’ to’ whom the Secretary may- delegate oo +. proper authority, the Secretary of the Army or. any such agent shall have the right to take im- *mediate possession of such boat, vessel, or other . Grok “_. water craft, or raft, so far as to remove or to | : destroy it and to clear immediately the canal, — . lock, or navigable waters aforesaid:of the ob- struction thereby caused, using his best judg- ment to prevent any unhecessary injury; and no one shall interfere with or prevent such re- - moval or destruction: Provided, That the officer or agent charged with thé removal or destruc- '. tion of an obstruction under this section may in’ ' his discretion give notice in. writing to the. _ owners of any such obstruction requiring them to remove it: And provided further, That the - expense of removing any such-obstruction as aforesaid shall be a charge against such craft and eargo; 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 pro- - ceeds of,such sale shall be covered into the © *. , Treasury of thé United States.- tam i : 2. The Limitation of Vessel Owner’s Liability Act # of 1851, 9 Stat. 635, as amended, 46. U.S.C. 181-189, - _ provides in pertinent part: We . a . " 46 US0edss:'-°: e ee Amount of liability; loss of life or bodily injury; privity imputed to owner; “sea- _ going vessel.”’ : ae my, (a) The liability of the owner of any vessel, _ whether American or foreign, for any embezzlé- ~ _. ment, loss, or destruction by any person of any \ *- Faek. property, goods, or merchandise shipped or put 7 on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or: .. thing; loss, damage, or forfeiture, done, occa-* \ I ee site © 0 ct acm 3 I 0 A BABS OR itn ine atte abs 0 entints anrsn rnin x > 2 o.™ * i ‘ : . 3 7° $, 60° sioned, or incurred, without the privity or knowl- | ing of such owner or owners, shall not, except he cases provided for in subsection. (b) of — | thi section, exceed the amount or value of the - interest of such owner in such vessel, and her - iri then , Bending, wind east ¥ 7 — * 46 U. S.C. 186: Charterer may be deemed owner. The charterer of any vessel, in case he shall “man, _victual, and navigate such vessel at his own expehse, ar by his own procurement, shall be deemed the owner of such vessel within the meaning of the provisions of this chapter re- lating to the limitation of the. liability of the owners of vessels; and such vessel, when so chartered, shall be liable in the same manner as. if navigated by the owner thereof. 3. “$3>Code ° ‘of Federal. Regulations ~~ 410 pro- vides: “a? Abandonment of wrecks. : By the maritime law the owner of a vessel which is-sunk without fault on his part may ‘abandon the wreck in which case he cannot be held responsible for Tgmoving it even though it obstructs navigation. “That. law has not been _ changed by sections 15,19, and 20 of the River -and Harbor Act of March 3, 1899 (30 Stat. 1152, ~ 1154; 33 U.S.C. 409, 414. . -415), which fully | recognize the owner’s right of abandonment. Howeyer, a person who willfully or negligently permits a vessel to sink in navigable waters of ‘ the United States may ap relieve himself from - all liability by merely abandoning the wreck. He may be found guilty of ‘a misdemeanor and punished by fine, imprisonment, or both, and . in addition may have his license revoked or sus- _ pended. He may also be cémpelled to remove the _wreck as a- public nuisance*or to pay for its 3 removal. i oe « , , ws. GOCcaNMENT PRINTING OFFICE: 1967 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0109%3A07. Public record. Not legal advice.