United States v. M/V MARTIN

• Decision Date: 27 February 1963
• Docket Number: No. 13642.,13642.
• Citation: 313 F.2d 851
• Parties: UNITED STATES of America, Libelant-Appellee, v. The M/V MARTIN and BARGE MOS-101, their engines, tackle, apparel and furniture, and Martin Oil Service, Inc., an Illinois corporation, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

313 F.2d 851 (1963)

UNITED STATES of America, Libelant-Appellee, v. The M/V MARTIN and BARGE MOS-101, their engines, tackle, apparel and furniture, and Martin Oil Service, Inc., an Illinois corporation, Respondents-Appellants.

No. 13642.

United States Court of Appeals Seventh Circuit.

February 27, 1963.

Edward B. Hayes, Chicago, Ill., William K. Johnson, Lord, Bissell & Brook, Chicago, Ill., of counsel, for appellants.

John G. Laughlin, Anthony W. Gross, Sherman L. Cohn, Dept. of Justice, Washington, D. C., Marks Alexander, Asst. U. S. Atty., Springfield, Ill., Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Edward R. Phelps, U. S. Atty., Dept. of Justice, Washington, D. C., for appellee.

Before SCHNACKENBERG, CASTLE and SWYGERT, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

United States of America, herein sometimes referred to as libelant, commenced an action in the district court by filing a libel in rem against the M/V Martin and Barge MOS-101, their engines, tackle, apparel and furniture, based upon a cause of collision, civil and maritime. Thereafter, Martin Oil Service, Inc., an Illinois corporation, appeared as owner of said vessel and filed an answer and exceptive allegations to the libel, as well as a cross-libel.

The court without a jury tried the case and entered a judgment in favor of libelant,¹ and against the cross-libelant, from which Martin Oil Service Inc., respondent and cross-libelant, has appealed.

There is no disagreement between the parties that the libeled vessels collided with and damaged the structure of the navigational aid Drolls Point light in Peoria Lake, a portion of the Illinois River, although it is maintained by respondents that it had already been damaged prior to said collision.

Respondents concede in their briefs that the government's evidence as to the reliability of the light is very strong. They say that the gist of the evidence is that every practical step which could be conceived of by the engineers who designed it, was taken to insure that the light would not fall victim to internal failure. They add that, if Drolls Point light had been a mechanically perfect device, absolutely certain not to fail due to internal malfunction, then the only possible explanation for a malfunction is that the cause was external to the light.

Respondents contend that "the record contains uncontradicted and direct evidence that the beacon was not standing".

In view of this contention, the district court received and considered evidence offered by both sides bearing upon the issue thus presented, viz., whether the damage to the Drolls Point light was caused by respondents or whether their collision with the light occurred after it had already been damaged by collision with some other vessel. The trial court made findings that Drolls Point light was in an undamaged condition immediately prior to the collision, and that the Barge MOS-101, in tow of the Martin, collided with and knocked down the light stand. There is in the record substantial evidence to support these findings. No purpose would be here served by a detailed recital thereof. We have no right on the record before us to set aside these findings of fact. They are not clearly erroneous. See 28 U.S.C.A., rule 52(a), which applies to admiralty cases; McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20.

The application of the pertinent substantive law to these and other findings made by the court was correct. 33 U.S.C.A. § 408 provides:

"It shall not be lawful for any person or persons to * * * destroy, move, injure, * * * or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, * * * for the preservation and improvement of any of its navigable waters * * * or as boundary marks, * * * buoys, or other established marks, * * *."

33 U.S.C.A. § 411 provides:

"Every person and every corporation that shall violate, * * * the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor * * *."

§ 412 of said title provides, in the last sentence thereof, as follows:

"And any boat, vessel, scow, raft, or other craft used or employed 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, * * * and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof."

These statutory provisions are part of the legislation enacted by Congress for the preservation and protection of navigable waters.

Thus in United States v. The Helen, 2 Cir. (1947), 164 F.2d 111, a scow was held liable in rem for a penalty incurred by discharging a quantity of lumber into the tidal waters of New York harbor in violation of 33 U.S.C.A. § 441.

In The President Coolidge v. United States, 9 Cir. (1939), 101 F.2d 638, a penalty assessed against a libelee was affirmed. Even though the owner of the vessel had issued orders prohibiting the throwing of refuse into the harbor of Honolulu, the act involved, 33 U.S.C.A. § 407, makes the action complained of unlawful, and the vessel employed in violating said section was held liable. The action, even though unintentional, was held a violation of the act. The court sa...