United States v. Moran Towing & Transportation Co.

• Decision Date: 10 February 1967
• Docket Number: No. 9867,9868.,9867
• Parties: UNITED STATES of America, Appellee, v. MORAN TOWING & TRANSPORTATION COMPANY, Incorporated, Appellant. UNITED STATES of America, Appellee, v. BETHLEHEM STEEL COMPANY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

374 F.2d 656 (1967)

UNITED STATES of America, Appellee, v. MORAN TOWING & TRANSPORTATION COMPANY, Incorporated, Appellant.

UNITED STATES of America, Appellee, v. BETHLEHEM STEEL COMPANY, Appellant.

Nos. 9867, 9868.

United States Court of Appeals Fourth Circuit.

Argued May 5, 1965.

Decided February 10, 1967.

David R. Owen, Baltimore, Md. (William R. Dorsey, III, and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellant in No. 9868.

Southgate L. Morison, Baltimore, Md. (Ober, Williams & Grimes, Baltimore, Md., on brief), for appellant in No. 9867.

Martin Jacobs, Atty., Department of Justice (John W. Douglas, Asst. Atty. Gen., and Alan S. Rosenthal, Atty., Department of Justice, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.

HAYNSWORTH, Chief Judge.

The controversy involves the duty and financial burden of removal of the broken hulk of what once was a floating dry dock. The United States contends that the financial burden rests upon Bethlehem Steel Company, the owner, and Moran Towing & Transportation Company, Incorporated whose tugs had the dock in tow, because, under the relevant statutes, the dry dock was not a vessel or craft, and, even if it was, that the burden is cast upon the owner and the tug owner, because the dry dock was intentionally grounded, as the District Court found, or, at least, the grounding occurred as a result of negligence. The defendants, on the other hand, contend that the floating dry dock was a vessel or craft within the meaning of the relevant statutes, that the grounding was not intentional or even the result of negligence, but, that if there were fault on their part, the owner's abandonment casts the duty and financial burden of removal upon the United States, except insofar as it could reimburse itself from the salvage.

The District Court held for the United States upon the ground that the floating dry dock was neither a vessel nor a craft, and, alternatively, that, if it was, the grounding was intentional. On appeal the United States urges as additional support that even if not intentional the grounding was negligent and this defeats the owner's right of abandonment. We conclude that the judgment cannot be supported on either ground or upon the alternative supporting ground advanced on appeal by the United States.

The floating dry dock was of wooden construction. It was composed of six trussed sections numbered 1, 2, 3, 4, 5 and 7.¹ It had an overall length of 360 feet, a width of 100 feet, and it was 45 feet high. It had a capacity of 9400 tons.

Bethlehem had purchased the dock in 1930, at which time it was approximately ten years old. It was then towed section by section from Charleston, South Carolina to Bethlehem's Key Highway Yard in Baltimore, Maryland, where it was in substantially continuous use as a floating dry dock through October 4, 1962, only thirteen days before the tow commenced which resulted in its wreckage.

Earlier, Bethlehem had decided to dispose of the dry dock, which was then, apparently, in good condition and regular use. Bethlehem had closed some of its yards in New York Harbor and had decided to replace the 9400-ton floating dry dock with another of larger capacity made surplus by the New York closings. The replacement dock was one of 20,000-ton capacity. That decision made, Bethlehem then turned to the disposition of the 9400-ton dock.

Bethlehem considered beaching the dry dock and burning it, but the landowners it contacted were unwilling to have their properties used for such a purpose. An inquiry was addressed to the Maryland Port Authority which declined to suggest approval of a sinking anywhere in Chesapeake Bay, but, after suggesting the possibility of beaching and burning it,² mentioned that it might be sunk at sea. Bethlehem then contacted the Army Engineers, from whom they learned that the engineers had no rules prohibiting the scuttling of the dry dock at sea at or beyond the thousand fathom curve, and that, if sunk there, the Navy had no interest and the Coast Guard no jurisdiction.

Bethlehem then decided to have the dry dock towed out to sea and sunk beyond the thousand fathom curve. It entered into a contract with Moran Towing & Transportation Company, Incorporated to take it to sea.

On October 17, 1962, only thirteen days after the last day on which the dock had been in use, two of Moran's tugs took it under tow. They departed Bethlehem's Key Highway Yard at approximately 6:45 P.M., and, twenty minutes after midnight, the flotilla hove to near Chesapeake Bay Bridge to await further information about a storm reported off the Carolina Coast. The weather was good, the sea calm, and the tide was only three quarters of a knot. The flotilla steamed into the tide at three-quarters of a knot, so that it had no motion over the ground.

At 5:30 o'clock on the morning of October 18 the dock was riding well and normally, but at 5:45 there was an obvious list at the forward port corner of the forward section, that being No. 7. The foremost port compartment of the No. 7 pontoon was found to be filling rapidly. Pumps, provided for that purpose, were placed in operation in No. 5 pontoon, but it, too, began to fill about 7:00 o'clock. Meanwhile, the Captain of the flotilla decided that prudence required a return to the Key Highway Yard. He shifted the lead tug to the after end of the dock, and at 6:50 o'clock in the morning began a return trip up the Bay. This placed the pontoon sections which were taking on water at the starboard after end of the return movement of the flotilla.

In Brewerton Channel, an entrance to Baltimore Harbor, the after starboard end of the dry dock began to hit bottom. By this time representatives of Bethlehem, who had been notified, had come out to meet the flotilla and were present. After radio-telephone consultation with another Bethlehem official at Key Highway Yard, which is in the inner harbor, it was decided to turn out of the channel toward Bethlehem's Sparrows Point steel plant. It then appeared most unlikely that the sinking dry dock could be successfully towed to the Key Highway Yard, and Sparrows Point, at the entrance to Baltimore Harbor, was immediately at hand.

The dry dock finally grounded in 21 feet of water off Sparrows Point some 250 yards north of Brewerton Channel, but well short of land controlled by Bethlehem. The tugs could move it no farther.

Though the wreck did not menace traffic in any dredged channel, it was in waters of Baltimore Harbor which are technically navigable and readily usable by vessels of shallow draft and small craft. The United States regarded the wreck as a menace to navigation and sought its removal. It declined to accept its abandonment, which Bethlehem tendered shortly after the foundering.

Since the oral argument, the Court has been informed that the dry dock has been removed by the United States at a cost of $163,000.

It may be helpful at the outset to take a brief general look at the relevant statutes, all of which are derived from the Rivers and Harbors Act of 1899.

Title 33 U.S.C.A. § 401, derived from § 9 of the Rivers and Harbors Act of 1899, prohibits the construction of bridges, dams, dikes and causeways in or over navigable waters without prior approval of the Chief of Engineers and the Secretary of the Army.

33 U.S.C.A. § 403, derived from § 10 of the Act, the full text of which is set forth in the margin,³ prohibits the creation of any obstruction to the navigable capacity of waters of the United States unless authorized by the Congress. The section declares that the building or the commencement of the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, or jetty shall not be lawful unless done pursuant to plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. It also declares it shall not be lawful to excavate, fill or alter the course, condition or capacity of any port or similarly enclosed waters or of a canal or the channel of any navigable waters of the United States, unless the work has been authorized by the Secretary of the Army upon the recommendation of the Chief of Engineers.

Section 404, derived from § 12 of the Act, authorizes the Secretary of the Army to establish harbor lines and prohibits the extension of piers, wharves, bulkheads, or other works or deposits beyond the harbor lines, except pursuant to regulations prescribed by the Secretary of the Army.

Section 406, derived from § 12 of the Act, provides a penalty for the wrongful construction of bridges, piers and similar structures and provides for their removal. It declares any violation of §§ 401, 403 or 404 shall be a misdemeanor and specifically authorizes district courts to issue injunctions requiring the removal of any structure, or part of a structure, erected in violation of those sections.

Section 409 of Title 33, which was § 15 of the Act, the text of which is set forth in full in the margin,⁴ relates to the obstruction of navigable waters by vessels or other craft. It provides that the anchorage of vessels or other craft in a navigable channel in such a way as to hinder the passage of other vessels or craft is unlawful. It also makes it unlawful voluntarily or carelessly to sink or permit the sinking of a vessel or other craft in a navigable channel or to float loose logs or sack rafts in streams used by steamboats in such a manner as to obstruct the navigation of vessels. It then provides that whenever a vessel, a raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, the owner must immediately mark the wreck and promptly commence its removal. Failure to commence the immediate removal of the wreck shall be considered an abandonment and subject the craft to removal by the United States.

Section 411, derived from a portion of § 16 of the Act, provides that any violation of § 409, or certain other sections with...