United States v. The Republic No. 2, Civ. A. No. 367.

• Decision Date: 05 January 1946
• Docket Number: Civ. A. No. 367.
• Citation: 64 F. Supp. 373
• Parties: UNITED STATES v. THE REPUBLIC NO. 2 et al.
• Court: U.S. District Court — Southern District of Texas

64 F. Supp. 373

UNITED STATES v. THE REPUBLIC NO. 2 et al.

Civ. A. No. 367.

District Court, S. D. Texas, Galveston Division.

January 5, 1946.

Brian S. Odem, U. S. Atty., and J. K. Smith, Asst. U. S. Atty., both of Houston, Tex., for plaintiff.

Royston & Rayzor and M. L. Cook, all of Houston, Tex., for claimant.

KENNERLY, District Judge.

The Intracoastal Waterway (Canal) crosses the Brazos River in this District and Division, and to protect the Waterway, the Government erected flood gates across the Waterway on each side of the River. It also erected, independently of the flood gates, "guide walls" designed and used to aid and guide vessels in passing into and through the flood gates. This suit, in rem, against the Tug Republic No. 2, the Barge ROR 104, the Barge ROR 105, and the Barge ROR 106 was brought here, originally in Admiralty, to recover damages and penalties by reason of alleged injury done by the Tug and Barges to such guide walls or part thereof on or about January 17, 1944, and February 28, 1944. The Tug and Barges were seized, and the Republic Oil Refining Company (for brevity called Claimant) has appeared, claimed same, and filed Stipulation in the sum of $12,000 in lieu thereof.

Claimant contended that the suit was not properly brought in Admiralty, and its contentions were sustained. It is a suit "by way of libel" under Section 412, 33 U.S.C.A., but not one in Admiralty.¹ Thereupon, by agreement, the case was transferred to the law side and has since proceeded as a Civil Action.

Some of the facts were stipulated. In addition, the depositions of many witnesses were taken and offered. The Stipulation is as follows:

(a) "By agreement of counsel for plaintiff and claimant, the following facts are agreed to be true for the purpose of this action and as limited solely to the issue of claimant's liability for civil damages; claimant makes no admission in so far as the Government's two claims for penalties are concerned and nothing contained herein shall be construed or used as an admission of fact or otherwise in so far as said claims for penalties are concerned, but as limited to the issue of civil liability, the said facts are to be taken as true in all respects as if testified to by competent witnesses in open court:

"Libellant, United States of America, is a corporation sovereign and body politic. The tug Republic No. 2 (formerly the F. J. Gough), the barge ROR 104, the barge ROR 105 and the barge ROR 106 were properly served, claim instituted and stipulation to abide decree posted, and that this Honorable Court has jurisdiction of the subject matter by virtue of and through the provisions of Section 412 of Title 33, United States Code Annotated.

"On January 17, A.D. 1944, at approximately 2:30 p.m., the tug Republic No. 2 (formerly the F. J. Gough), and a tow consisting of barges ROR 106, ROR 105 and ROR 104, being towed in the order named, proceeded through the West gate of the Brazos River Flood Gates near Freeport, Texas in Brazoria County, Galveston Division, Southern District of Texas, and started across the River. The weather was clear and there was a slight South wind. The river current was swifter than moderate and more than the master of the tug had expected. Upon the entrance of the tug and barges ROR 106 and ROR 105 into the River, the towing hawser and one coupling between barges ROR 105 and ROR 104 broke. The tug Sallie A. Rothermel, which was assisting in the crossing, held the tow until the tug Republic No. 2 could attach another tow line. A single line was placed between the tug Republic No. 2 to the amidships bit of the bow of the barge ROR 106, the first in order of procession of the three barges. The Sallie A. Rothermel was tied to the starboard side of the barge ROR 106 holding the tow, and during the process of securing the line to the barge ROR 106, the current carried both tug and the barges in tow approximately one hundred (100) yards below the entrance into the Intracoastal Canal and near the East bank of the River. After the line had been secured between the tug Republic No. 2 and the barge ROR 106, the tug Sallie A. Rothermel dropped back to the stern of the tow to assist the tow into the canal.

"The tug Republic No. 2 proceeded upstream with its tow until the tug was almost to the North bank of the Canal on the East side of the River at which time the tug Republic No. 2 commenced pulling its tow into the Canal. The current in the River kept the stern of the tow downstream and the tug Republic No. 2 was unable to break the tow away from the North guide walls. The tug was pulling at full speed at about a right angle to the lead barge. Just prior to the time that the barges struck the guide wall, the towing hawser between the barge ROR 106 and the tug Republic No. 2 broke. When it became apparent that the barges were going to hit the guide walls, the Sallie A. Rothermel at the stern of the tow went into reverse and stopped the tow after several piles were broken. Because of the way the current was running, it was impossible to put the tug alongside the barges and stop the tow from hitting the fender systems. At the time that the barges hit the guide wall they were at a slight angle about fifteen (15) points of the compass with the straight section of the guide walls.

"On February 28, A.D. 1944, at approximately 7:30 p.m., the tug Republic No. 2 (formerly the F. J. Gough), towing barges ROR 106, ROR 104 and ROR 105, in the order named, proceeded through the west gate of the Brazos River Flood Gates and maneuvered for position to proceed through the East gates. The tug Republic No. 2, followed by its tow, headed upstream after going through the West gate and then permitted the tow to drop downstream to get into position to enter the canal. The tug Republic No. 2 proceeded into the Intracoastal Canal with a man on the barge to let out coupling lines on the port side so that the barges would break into a line with the gate. The man on the barges, one Johnny Huges, slacked off the port coupling line between the barges ROR 106 and ROR 104, whereupon, the barge ROR 106 pulled into line all right. Johnny Huges, the man on the barges, was unable to get the towing line back on the bit and the barge ROR 104 being the second one in the order of procession, continued on its course, ramming into the pilings of the North guide wall at the approach to the East gate from the river side, breaking several piles."

(b) The Depositions show that the guide walls were injured on January 17, 1944, and February 28, 1944, as set forth in the Stipulation. I think that neither the Stipulation nor the Depositions show that the injury done to such guide walls on January 17, 1944, and on February 28, 1944, was caused by the negligence of those owning, operating, or in charge of such Tug and Barges, as charged in Plaintiff's Amended Pleadings, and I find that there was no negligence. Taking into consideration the facts stipulated and those shown by the Depositions, I think the accidents complained of could not reasonably have been avoided.

(c) The views of the counsel and the witnesses respecting the actual damages caused by the injury on January 17, 1944, and the one on February 28, 1944, take a wide range, but considering the Stipulation and all the evidence, and using "judgment and estimate,"² I find the actual damages caused the guide walls by the injury of January 17, 1944, to be $2,500, and the actual damages caused the guide walls by the injury of February 28, 1944, to be $3,000.

1. There being no negligence on the part of the owners, operators, and those in charge of the Tug and Barges, I take it the Government cannot recover at common law. However, the suit is brought by the Government under the Act of Congress of March 3, 1899, 30 Stat. 1152, 1153, a part of which is now Sections 408,³ 411,⁴ and 412,⁵ 33 U.S.C.A., the Government claiming the right to recover both the damages and penalties under Section 412.

Clearly, the injury to the guide walls comes within the scope of and is unlawful under Section 408. Section 411 makes natural persons and corporations who are guilty of violating Section 408 punishable by a fine of not less than $500 nor more than $2,500, and/or natural persons punishable in addition by imprisonment of not less than 30 days nor more than one year. The first paragraph of Section 412 provides for the revocation or suspension of the license of any master, pilot, engineer, etc., convicted under Section 408, and the second paragraph of Section 412 provides that the Government may recover from any boat, vessel, etc., used or employed in violating Section 408, the pecuniary penalties fixed in Section 411 and "in addition thereto" the amount of damages done by such boat, vessel, etc. Based on the wording of Sections 408, 411, and 412, I think the Government is right, and that it may recover here both the above-stated damages and a penalty, which is fixed at $500 for each injury, making a total recovery of $6,500.

This view is upheld in New England Dredging Co. v. United States, 1 Cir., 144 F. 932, 933. The Statute under construction there was the Act of March 3, 1899, and Sections 13 and 16 thereof, which are now Sections 407 and 411 of 33 U.S.C.A. The proceeding was in rem under Section 13 (now Section 407) against a boat or vessel for unlawfully discharging refuse matter into the navigable waters of the United States. The District Court permitted the recovery of a penalty under Section 16 (now Section 411), and the Circuit Court of Appeals, in affirming the decision, uses this language, which I think is the rule applicable to the case here:

"The scow in question belonged to the New England Dredging Company, and was loaded with dredged material which was discharged by the voluntary act of the scowmen in charge into waters of the United States covered by the statute to which we have referred. The act of the scowmen was without orders from the owner, the...