573 F.2d 993 (8th Cir. 1978), 77-1527, United States v. Federal Barge Lines, Inc.

Docket Nº:77-1527.
Citation:573 F.2d 993
Party Name:UNITED STATES of America, Appellant, v. FEDERAL BARGE LINES, INC., Dundee Cement Company in personam, and M/V TOM TALBERT, her engines, tackle, etc., in rem, Appellees.
Case Date:March 30, 1978
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 993

573 F.2d 993 (8th Cir. 1978)

UNITED STATES of America, Appellant,


FEDERAL BARGE LINES, INC., Dundee Cement Company in

personam, and M/V TOM TALBERT, her engines,

tackle, etc., in rem, Appellees.

No. 77-1527.

United States Court of Appeals, Eighth Circuit

March 30, 1978

Submitted Dec. 15, 1977.

As Amended on Denial of Rehearing and Rehearing En Banc May 11, 1978.

Page 994

Emmett B. Lewis, Admiralty & Shipping Section, U. S. Dept. of Justice, Civ. Div., Washington, D. C., argued, for appellant; Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Barry A. Short (former U. S. Atty.), St. Louis, Mo., Ronald R. Glancz, Clayton G. Ramsey, Attys., Dept. of Justice, Washington, D. C., on brief.

Lucian Y. Ray of Ray, Robinson, Keenen & Hanninen, Cleveland, Ohio (argued), Joseph A. Murphy of Lucas & Murphy, St. Louis, Mo., on brief, for appellee, Dundee Cement Co.

Elmer Price (argued), of Goldstein & Price, St. Louis, Mo., on brief, for appellees, Federal Barge Lines, Inc. and M/V Tom Talbert.

Before LAY and BRIGHT, Circuit Judges, and SCHATZ, District Judge. [*]

BRIGHT, Circuit Judge.

The United States appeals from the dismissal of its complaint against Federal Barge Lines, Inc., Dundee Cement Company, and the M/V Tom Talbert. The Government brought the action under sections 10, 14, and 15 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403, 408, and 409 (1970), to recover the expenses incurred in salvaging a barge owned by Dundee. At the close of the Government's case, the district court concluded that the Government had failed to prove negligence, as required under 33 U.S.C. § 409, and that 33 U.S.C. §§ 403 and 408 did not apply to the circumstances of this case; accordingly, it granted the defendants' motions to dismiss. We reverse and remand for further proceedings.

I. Background.

Federal Barge Lines, Inc. (Federal) owns and operates the M/V Tom Talbert, a diesel towboat. Dundee Cement Company (Dundee) owns a barge numbered DDC-12. On August 16, 1972, the Tom Talbert was towing the DDC-12 and fourteen other barges upriver on the Mississippi River near Saverton, Missouri. The DDC-12 carried a load of cement. Shortly after the flotilla passed through Lock & Dam # 22, the DDC-12 grounded on an unknown obstruction in the channel, broke away from the flotilla, and drifted back towards the dam. The captain and crew of the Tom Talbert tried unsuccessfully to catch the DDC-12. The barge lodged on icebreakers located approximately twenty feet upstream of the dam and sank.

Page 995

Shortly afterwards, Dundee contracted with the Valley Line Supply & Equipment Company (Valley) to remove the barge. High water and the approach of winter delayed the salvage operation until the following summer. By that time the cement had hardened, making the salvage efforts more difficult. Valley succeeded only in rolling the barge onto its starboard side, so that it protruded ten feet above the water surface, and moving the barge closer to the dam, so that it obstructed some of the gates. The barge did not, however, cause any physical damage to the dam.

On August 24, 1973, Valley stopped its unsuccessful operations and left the site. On August 29, 1973, Dundee made a tender of abandonment to the U.S. Army Corps of Engineers, which rejected the tender. Subsequently, the United States engaged Valley, as low bidder, to remove the barge. Removal was completed on June 16, 1976, at a total cost of $341,773.

The Government brought this action in August of 1975 against Federal and Dundee, in personam, and the Tom Talbert, in rem, to recover the cost of removing the sunken barge. The original complaint asserted claims under 33 U.S.C. §§ 403 and 409. 1 In July of 1976, the Government amended its complaint to assert a claim under 33 U.S.C. § 408 2 against Federal, in personam, and the Tom Talbert, in rem. In the meantime, Federal and the Tom Talbert, charging that under their contract Dundee had agreed to indemnify Federal, asserted a cross-claim against Dundee.

The court found that none of the defendants were negligent in causing the wreck and therefore dismissed the claim under section 409, which requires proof of negligence. Sections 403 and 408 impose strict liability, but the court found these sections to be inapplicable to the facts of the case. The court interpreted section 408 as requiring structural damage:

Sec. 408 as written and construed does not apply to the factual situation before this Court. A fair reading of that statute would indicate that the government is seeking to stretch the terms thereof out of any logical shape or framework in an effort to keep Federal, the M/V TOM TALBERT and Dundee as possible sources of recovery for removal costs. The government has not sought damages for injury to Dam 22; it cannot, in fact, seek such damages since the structure was not damaged and the lock and dam remained in continuous operation with no cessation of navigation.

Page 996

The court also found section 403 inapplicable, but its reasoning is less clear:

The provisions of 33 USC 403 are clearly not applicable to the factual situation before the Court, particularly in view of this Court's findings of fact that none of the Defendants were guilty of negligence, nor were their respective vessels unseaworthy in any respect. The cause is one of wreck removal, the costs for recovery of which must properly be considered under, and is controlled by, the provisions of 33 USC 409. Wyandotte, supra.

On appeal, the Government challenges the court's dismissal of the strict liability claims.

II. The Section 403 Claim.

In its complaint, the Government charged that the defendants had violated section 403 by creating an obstruction in a channel of navigable water. The Government did not pursue that claim, however. Except for quoting the text of section 403, along with several other provisions of the River and Harbors Act, in its pretrial memorandum, the Government did not mention or argue its claims under that section in either its pretrial memorandum, its proposed findings of fact and conclusions of law, its opening statement at trial, or its argument in response to the defendants' motion to dismiss. Because the Government did not press the section 403 claims in district court, we do not reach the merits of those claims on this appeal but sustain their dismissal solely on the basis that those claims were not in fact litigated in district court.

III. The Section 408 Claim Against the Tom Talbert.

Section 408 prohibits any person from injuring, obstructing, or impairing the usefulness of a structure built by the United States for the improvement of navigable waters or flood prevention. 3 Sections 411 and 412 provide criminal and...

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