United States v. Bethlehem Steel Corporation

• Decision Date: 19 June 1963
• Docket Number: No. 18027.,18027.
• Citation: 319 F.2d 512
• Parties: UNITED STATES of America, Appellant, v. BETHLEHEM STEEL CORPORATION, a corporation, and Calmar Steamship Corporation, a corporation as Bareboat Charterer of the AMERICAN STEAM SCREW TEXMAR, Official No. 247147, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

319 F.2d 512 (1963)

UNITED STATES of America, Appellant, v. BETHLEHEM STEEL CORPORATION, a corporation, and Calmar Steamship Corporation, a corporation as Bareboat Charterer of the AMERICAN STEAM SCREW TEXMAR, Official No. 247147, Appellees.

No. 18027.

United States Court of Appeals Ninth Circuit.

June 19, 1963.

Joseph D. Gulfoyle, Asst. Atty. Gen., Brockman Adams, U. S. Atty., Alan S. Rosenthal and Stanley M. Kolber, Attys., Department of Justice, Washington, D. C., for appellant.

Bogle, Bogle & Gates, and M. Bayard Crutcher, Seattle, Wash., for appellee.

Before MADDEN, Judge of the Court of Claims, and BROWNING and DUNIWAY, Circuit Judges.

MADDEN, Judge.

This case presents the question whether a ship owner who by his negligence causes the ship to sink in a channel where it will, until removed, constitute an obstruction to navigation, is liable to the United States for the cost incurred by the United States in removing the ship from the channel.

On December 30, 1960, the ship S. S. Texmar of the appellee Bethlehem Steel Company grounded on a shoal in Grays Harbor, Washington. Attempts to free it were unsuccessful; the ship fractured and became a total loss, obstructing the ship channel. Bethlehem and the other appellee, Calmar Steamship Corporation, which was operating the ship under a bareboat charter from Bethlehem at the time of the ship's grounding, sent certain communications to the United States Army Corps of Engineers and received responses from the Corps of Engineers. On January 13, 1960, the Corps of Engineers notified Bethlehem and Calmar that it was going to proceed to remove the ship from the channel and would charge the expense of doing so to Bethlehem and Calmar. It did so, and the United States says that the cost was in excess of $336,000, after salvage.

Because of the claim of the United States for reimbursement, Bethlehem and Calmar filed a petition in the United States District Court for the Western District of Washington, seeking exoneration from, or limitation of liability of, the expense arising out of the Texmar incident. The United States filed its answer, denying the right of the petitioners to the relief sought by them, and, in addition to its answer, filed a claim against Bethlehem and Calmar for the $336,000 which, it asserted, it had expended in removing the ship to restore the navigability of the channel. The United States asserted that the wrecking of the ship was the result of the negligence of Bethlehem and Calmar, and it specified nine respects in which it asserted that they had been negligent.

Bethlehem and Calmar moved for dismissal of the claim of the United States on the ground that the claim failed to state a cause of action. The district court, on January 11, 1962, dismissed the claim of the United States, and the United States has appealed to this court against that judgment. It asserts that its claim is valid because certain statutes provide for the liability which it asserts, and because, even in the absence of those statutes, there is such a liability at common law.

Since the district court's judgment was rendered pursuant to a motion to dismiss, we must assume as a fact what the United States asserted in its rejected claim, that is, that the wreck was a result of the negligence of Bethlehem and Calmar. The United States concedes, for the purposes of its argument in this case, that the appellees would not have been liable if the wreck had been the result of misfortune not involving wilfulness or negligence. And the appellees concede, similarly, that if they had purposely sunk their ship and thus obstructed a navigable channel they would have been obligated to remove the wreck or pay for its removal.

As we have said, the Government asserts both a statutory and a common law basis for its claim. Adverting for the moment to the question of the common law basis, we suppose that if one owns a right of way over the land of another, and a third person negligently places an obstruction in that way, he would be legally obligated to the owner of the way to remove the obstruction or pay the cost of its removal. And we suppose that if one, by contract or otherwise, were subject to the duty to keep a right of way open for those entitled to use it, and someone negligently placed an obstruction in the way and refused on request to remove it, the person having the duty to keep the way open could remove the obstruction and recover the cost of the removal from the one who had negligently caused the obstruction. If those assumptions are correct, and if the law of waterways is like that of land ways, the Government's argument for a common law basis for its claim would seem to have a substantial basis. We return to this problem later in this opinion.

However, there are federal statutes which have a bearing upon our problem and which, both appellees and the Government urge, support their respective positions. We find the statutes difficult to interpret in their application to our problem. The statutes upon which the parties principally rely are contained in the Rivers and Harbors Appropriation Act of March 3, 1899, 33 U.S.C. §§ 401 to 415.

At the beginning of this opinion we said that, after the wreck of the Texmar, certain communications passed between the appellees and the Government. Three days after the Texmar was wrecked, the appellees sent a telegram to the Army Engineers advising that they were abandoning the wreck to the United States. Ten days later, the Army Engineers, by telegram, refused to accept the tendered abandonment and asserted that the ship was an obstruction to navigation within the meaning of §§ 414 and 415 of Title 33, United States Code; that the Engineers were going to remove or destroy the obstruction; and that the expense of doing so would be charged to the appellees. Shortly thereafter, as we have seen, the Engineers did remove the wreck.

There is no doubt about the right or power of the Government, in the circumstances, to remove the wreck and clear the channel. Section 414¹ is clear as to this power. The Engineers were in no sense officious intermeddlers when they proceeded to remove the wreck from the channel. And § 414 provides that any recovery from the disposal of the wreck shall belong to the United States. But § 414 says nothing with regard to any personal liability of the owner of the vessel to the United States, whether the sinking was intentional, negligent, or by innocent misfortune.

Section 409 of U.S.C. Title 33 says:

"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 voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; or to float loose timber and logs, or to float what is known as `sack rafts of timber and logs\' in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation. And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally 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 of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411-416, 418, and 502 of this title."

This section makes it unlawful to do what the appellees did here,² i. e., to carelessly sink their vessel in a channel of navigation. They thus became liable, under § 411,³ to criminal prosecution and a fine of from $500 to $2500. Section 409 further provides that when a craft is sunk, accidentally or otherwise, in a navigable channel, the owner must mark it with a buoy or beacon and maintain the marking until the craft is removed or abandoned. Failure to maintain the marking is made unlawful, so that for this failure the criminal provisions of § 411 would again be applicable, and this even though the sinking was accidental, which, we suppose, means innocent. Then § 409 imposes the duty on the owner to commence the immediate removal of the wreck and prosecute such removal diligently. Then comes significant but by no means clear language, "and failure to do so i. e., to diligently prosecute removal shall be considered an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411-416, 418 and 502 of" Title 33.

The appellees' failure to diligently, or at all, prosecute the removal of their wrecked ship was, by § 409, made the legal equivalent of an abandonment of the ship to the United States. We find nothing in the statutes requiring the United States to accept an offer of abandonment of a ship, whether or not it is obstructing a navigable channel. The Engineers might well determine that it would be more economical to dredge a new channel than to remove a wreck from the former channel. This would depend upon whether there would, in the particular case, be an obligation on the part of the owner to reimburse the United States for its costs, which is, of course, the question in the instant case, and whether, if there would be such an obligation, the owner would be financially able to perform it. In the instant case, the Engineers notified the appellees that the United States was not accepting the offered abandonment of the Texmar to it. The Engineers said that they were going to clear the channel, pursuant to 33 U.S.C. §§ 414, 415. We quote § 415 in a footnote.⁴

We look to § 415 for the answer to our problem, and we look in vain. What §...