U.S. v. City of Redwood City

• Decision Date: 23 February 1981
• Docket Number: No. 78-3162,78-3162
• Citation: 640 F.2d 963
• Parties: , 11 Envtl. L. Rep. 20,341 UNITED STATES of America, Plaintiff-Appellant, v. CITY OF REDWOOD CITY, California and Albert V. Pinotti, Individually and dba The People's Police Patrol, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 963

640 F.2d 963

15 ERC 1699, 11 Envtl. L. Rep. 20,341

UNITED STATES of America, Plaintiff-Appellant, v. CITY OF REDWOOD CITY, California and Albert V. Pinotti,

Individually and dba The People's Police Patrol,

Defendants-Appellees.

No. 78-3162.

United States Court of Appeals, Ninth Circuit.

Argued Sept. 9, 1980.

Submitted Oct. 31, 1980.

Decided Feb. 23, 1981.

Norman Ronneberg, Jr., San Francisco, Cal., for plaintiff-appellant.

Joseph C. Howard, Jr., Branson, Fitzgerald & Howard, Redwood City, Cal., David B. Paynter, Ericksen, MacKenroth & Arbuthnot, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, Circuit Judge, KASHIWA, ^* Court of Claims Judge, and TANG, Circuit Judge.

KASHIWA, Court of Claims Judge:

The appellant, United States, seeks to recover costs it incurred due to the sinking of the barge Pioneer No. 1. Reimbursement is sought from The City of Redwood City (Redwood City), owner and operator of the Port of Redwood City and the berth at which the barge sank, and from Albert V. Pinotti (Pinotti), owner and operator of the private police company which provided security at the Port. ¹ The damages claimed herein are for wreck removal and oil pollution cleanup costs. The averred nonowner's liability is premised on 33 U.S.C. §§ 401-414 (1976) (Wreck Removal Act), the Federal Water Pollution Control Act, 33 U.S.C. § 1321 (Supp. II, 1972) (FWPCA), and general maritime tort and nuisance theories.

The issue on appeal is whether the district court erred in granting defendants' motions to dismiss. We reverse.

I. The Facts

On May 8, 1975, the barge Pioneer No. 1 sank at its berth at the Port of Redwood City, California. The sinking created an obstruction to navigable waters of the United States and also resulted in a discharge of oil. The United States removed both the stricken vessel and the discharged oil from the waterway. Those costs, allegedly, were $81,725 and $7,014.51, respectively.

By contract Pinotti was required to provide security services to the Port, i. e., patrol and maintain surveillance over the Port and its occupants. Redwood City had the normal duties of a wharfinger.

The material allegations of the United States' complaint are as follows:

a) At all material times, defendants City of Redwood City and Albert V. Pinotti, et al. were the agents, servants and employees of each other, and were acting within the scope of their respective authorities.

b) The sinking of the barge PIONEER NO. 1 was caused by the fault, negligence and carelessness of defendants, in that: 1) They knew or should have known that the barge which they permitted to be moored on their premises was unseaworthy, unfit, and leaking; and 2) they failed to take adequate measures to prevent the sinking of the barge when they or their agents knew it was in fact sinking at its berth.

c) Defendants received notice that the barge had sunk, and was discharging oil.

d) Defendants, in causing or permitting the vessel to sink, were liable to the United States, under the provisions of the Wreck Removal Act, 33 U.S.C. 409-414, to reimburse the United States for its wreck removal expenses.

e) Defendants, in causing or permitting the vessel to sink and discharge oil, were liable to the United States, under the provisions of the Federal Water Pollution (Control) Act (FWPCA), 33 U.S.C. 1321, to reimburse the United States for its oil cleanup costs.

f) Defendants were unjustly enriched in having their duties performed by the United States.

g) Defendants had created a public nuisance and were liable to the United States for the cost of said nuisance's removal.

Pinotti moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). This motion asserted that, as a non-vessel owner, neither the Wreck Removal Act nor the FWPCA imposed a duty on him to reimburse the United States for any of the expenses at issue.

Redwood City filed a motion to dismiss, denominated a motion for judgment on the pleadings, under Fed.R.Civ.P. 12(c). Redwood City's motion asserted that the United States failed to state a claim against it either for wreck removal or oil cleanup damages because the Wreck Removal Act applies only to owners of vessels. Furthermore, it asserted that the FWPCA applies only to owners and operators of the polluting vessel in the absence of willful negligence or willful misconduct.

Pursuant to these motions the district court dismissed the claim of the United States.

II. The Merits

Central to appellant's complaint is the allegation of negligence on the part of the appellees. It is claimed that appellees' negligence permitted the vessel to sink, thereby causing the expenses for the wreck removal and oil pollution cleanup. We cannot determine from the judgment below what the basis for dismissal was. It appears, however, that the district court may have made a determination of negligence and causation. ² In orally granting the requested motions to dismiss, the district court stated, inter alia : "it seems to me that causal responsibility in this case is so removed from the defendants that it does present a rather unusual situation * * * "; and the court believed that "to regard the activities of the defendants as negligent misconduct is to stretch (proximate) cause * * * to an unreasonable degree." But even if the face of the pleadings indicate that recovery is very remote, the claimant is still entitled to offer evidence to support its claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). See also Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1100 (9th Cir. 1971). Also, in acting on a motion to dismiss, the plaintiff's allegations must be assumed to be true and the complaint must be construed in the light most favorable to the plaintiff. California Dump Truck Owners Assn. v. Associated General Contractors of America, 562 F.2d 607, 614 (9th Cir. 1977); McKinney v. De Bord, 507 F.2d 501, 503 (9th Cir. 1974).

Moreover, the accepted rule is that a complaint is not to be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-103, 2 L.Ed.2d 80 (1957); Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980); DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966). Under this rule it is only the extraordinary case in which dismissal is proper. Corsican Productions v. Pitchess, 338 F.2d 441, 442 (9th Cir. 1964); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 at 598 (1969).

We find that appellant's complaint sets forth allegations which, if proved, would support its claims against appellees for wreck removal and oil cleanup costs. With what the district court had before it, it could not be certain beyond doubt that the United States would be unable to prove its case at trial. Conley v. Gibson, supra. Thus, assuming the district court dismissed based on grounds of causation and negligence, it erred; the United States should be given an opportunity to develop and prove the relevant facts at a trial.

Recovery of the costs incurred by the United States in removing the sunken barge is sought under section 15 of the Wreck Removal Act, which is a portion of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq. ³ In light of the holdings in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), and University of Texas Medical Branch at Galveston v. United States, 557 F.2d 438 (5th Cir. 1977), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1978), both appellees concede that section 15 of the Wreck Removal Act applies to some nonowners of vessels. ⁴ It is their contention, however, that liability under the Act is limited to active negligence. ⁵

In Wyandotte Transportation Co. v. United States, supra, two actions were consolidated. Both cases involved the negligent sinking of barges. The United States removed the sunken vessels and in an in personam action brought suit against the barge owners, the owners of the vessels moving the barges, and the owners of the cargo. The Court held that, under section 15 of the Wreck Removal Act, the procedures specified were not exclusive and the United States has available to it the ability to seek reimbursement of wreck removal expenses. Id. at 200-201, 88 S.Ct. at 385. The Court also observed that the general prohibition against the negligent sinking of a vessel is not limited to owners. Id. at 199 n.11, 88 S.Ct. at 385 n.11. In view of the Wyandotte decision, it is apparent section 15 is not limited to vessel owners. As the court in University of Texas Medical Branch at Galveston v. United States, supra at 445, stated: "(the Supreme Court) drew no distinction between negligent owners of the wreck and negligent nonowners. Indeed, it rejected the claim that negligent owners of the wreck should be treated differently * * *."

The question to be decided here is whether a nonowner's liability under section 15 of the Wreck Removal Act is restricted to active negligence. It is axiomatic that in a negligence action causation encompasses both the defendant's acts and omissions. Prosser, Law of Torts (4th ed.) at 237-238. We therefore must determine whether the Wreck Removal Act intended a divergence from common law tort actions.

The Supreme Court has consistently determined the coverage of the Wreck Removal Act to be broad. See, e. g., Wyandotte Transportation Co. v. United States, supra; United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960); Sanitary District of Chicago v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925). The Wreck Removal Act is an assertion of the sovereign power resting in the United States; and "a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself." United States...