United States v. Ohio Barge Lines, Inc.
Decision Date | 09 June 1977 |
Docket Number | Civ. A. No. 75-783. |
Parties | UNITED STATES of America v. OHIO BARGE LINES, INC., in personam and M/V Steel Forwarder, her engines, tackle, appurtenances, etc., in rem. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Don Kronenberger, Admiralty & Shipping Sect. U. S. Dept. of Justice, Washington, D. C., for plaintiff.
Wayne Emery, Pittsburgh, Pa., for defendants.
This matter is before me on motions filed by the defendants, Ohio Barge Lines, Inc. (Ohio Barge) and the M/V Steel Forwarder (Forwarder), a river going vessel owned by Ohio Barge, to dismiss the complaint filed against them by the United States pursuant to Rule 12(b)(6), Federal Rule of Civil Procedure. The defendant Ohio Barge alleges that the plaintiff's claim asserting a violation of § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 fails to state a claim against it, while the defendant Forwarder alleges that the plaintiff's claim of a violation of § 10 and § 15 of the Act, 33 U.S.C. § 403 and § 409 fails to state a claim against it. Section 403 states as follows:
Section 409 reads as follows:
For the purpose of making a determination on a motion to dismiss and reviewing the facts, the complaint is reviewed in the light most favorable to the plaintiff and its allegations are taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Curtis v. Everette, 489 F.2d 516, C.A. 3, 1973, cert. den. 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1973).
The Government alleges that on or about June 27, 1972, the Forwarder was pushing seventeen barges upstream nearing Mile 846.0 on the Ohio River at the Government's Uniontown Lock and Dam site when it "willfully, voluntarily, carelessly and/or negligently caused or permitted to sink three barges in its tow." Plaintiff's complaint, paragraph 7. Due to this sinking the Government contends that an obstruction to navigation was caused and in order to ensure the safety and welfare of river traffic, the Corps of Engineers determined that a helper boat would be necessary to escort traffic at the Uniontown Lock as long as the obstruction remained and the salvaging operation continued. After Ohio Barge declined to provide a helper boat, the Corps of Engineers contracted for the services of the T/B Jefferey Lynn from July 24, 1972 through August 20, 1972 for $15,680.00.
The Government has filed this action pursuant to the above incident claiming that the defendants caused an obstruction in navigation in violation of 33 U.S.C. § 403 and § 409 and were therefore under a duty to provide or pay for services rendered by the helper boat, T/B Jefferey Lynn, as well as removing the obstruction. The Government also alleges that the obstruction was a nuisance and an obstruction to navigation in violation of the general maritime laws.
The defendant Ohio Barge moves only to dismiss the Government's statutory claims on the basis that the Government has no cause of action against it pursuant to § 10 of the Act, 33 U.S.C. § 403, because the law of the Third Circuit is that unintentional sinking of a barge creates no in personam rights under § 10 of the Act and a negligently sunken barge is no obstruction.
An interpretation of the first clause of § 10 is the crux of the problem with a special concern for the word "obstruction". Although there is a recognized conflict among the Circuits as to whether or not a sunken vessel qualifies as an "obstruction" in § 10, in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 196, n. 5, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), a broad interpretation must be given to § 10 and in turn to the purpose or scope of the Act. United States v. Republic, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960).
The defendant Ohio Barge misplaces reliance on three cases: United States v. Zubik, 295 F.2d 53, C.A. 3, 1961; The Manhatten, 85 F.2d 427, C.A. 3, 1936 and United States v. Bigan, 170 F.Supp. 219 (D.C.Pa. 1959), aff'd 274 F.2d 729, C.A. 3, 1960, which it claims stand for the proposition that an unintentional sinking of a barge creates no in personam rights under § 10 and that a sunken barge is no obstruction. A careful reading discloses that The Manhatten, supra, never even deals with § 10 of the Act in question, and United States v. Zubik, supra, which applies the theory that removal expenses for sunken vessels are not authorized by the Act, was reversed by Wyandotte, supra, which held:
(389 U.S. at pages 200-201, 88 S.Ct. at page 385.)
However, the defendant Ohio Barge's main thrust is placed on the court's interpretation of the Act in United States v. Bigan, supra. There the Government was seeking a mandatory injunctive order under the second sentence of § 12, 33 U.S.C. § 406,1 for an alleged violation in § 10 to remove dirt and stones negligently discharged into the river. The Court held that the second sentence of § 12 was in pari materia with the phrase in § 10 which prohibited the building of any wharf, pier, etc., and therefore a sand barge, negligently created in that it was not an intentional fill, is natural and not a "structure" and no injunction should lie under § 12. It based its determination on United States v. Republic Steel Corp., 264 F.2d 289, C.A. 7, 1959, even knowing certiorari was granted in 359 U.S. 1010, 79 S.Ct. 1150, 3 L.Ed.2d 1035, 1959.
In United States v. Republic Steel Corp., supra, the Supreme Court reversed the above reasoning by holding:
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