University of Texas Medical Branch at Galveston v. U.S.

Citation557 F.2d 438,1977 A.M.C. 2607
Decision Date12 August 1977
Docket NumberNo. 75-2767,75-2767
PartiesComplaint of the University of Texas Medical Branch at Galveston, et al. The UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Dan H. Hinds, F. E. Billings, Houston, Tex., John L. Hill, Atty. Gen. of Tex., Jack Sparks, John Reeves, Austin, Tex., Adrian F. Levy, Galveston, Tex., L. Glen Kratochvil, Houston, Tex., Bryan F. Williams, Jr., Galveston, Tex., Alan S. Dale, Houston, Tex., for plaintiffs-appellants.

Edward B. McDonough, Jr., U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., Emmett B. Lewis, Admiralty & Shipping Section, William G. Kanter, Civ. Div., Dept. of Justice, Washington, D. C., for defendant-appellee.

Arthur L. Schechter, Houston, Tex., for other interested parties.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG and HILL, Circuit Judges and KERR, * District Judge.

GOLDBERG, Circuit Judge:

This case casts us adrift on muddied waters that lie at the convergence of two desultory streams of nineteenth century thought. On the one hand, Congress sought to ensure that navigable waterways remained free of obstructions, including sunken vessels. Accordingly, it prohibited the negligent creation of such obstructions by enacting the Wreck Act, a portion of the Rivers and Harbors Act of 1899 (1899 Act). 1 On the other hand, Congress sought to ensure that American shipping attracted investment capital that the threat of unlimited economic exposure might divert to England. Accordingly, it limited the shipowner's liability for losses caused without his "privity or knowledge" by the operation of his vessel by enacting the Limitation of Liability Act of 1851 (Limitation Act). 2 This appeal presents the important question whether a civil action by the United States to recover wreck removal expenses against one who negligently causes another's vessel to sink, obstructing a navigable waterway in violation of the 1899 Act, is subject to the Limitation Act.

The case at bar calls us to the unenviable task of deciding whether an impossibly obscure law (the 1899 Act) prevails over a hopelessly anachronistic one (the Limitation Act). The Limitation Act, two distinguished commentators have remarked, "has been due for a general overhaul for the past seventy-five years; seventy-five years from now that statement will be still true, except that the overhaul will then be one hundred and fifty years overdue." 3 Our opinion today is regrettably only a temporary dry-dock.

On the other hand, with respect to the Rivers and Harbors Act, a distinguished jurist has remarked wryly, "clarity of draftsmanship is not (its) hallmark." 4 We daresay the Act will not qualify for the hall of fame even after our attempt at exegesis. 5

Nevertheless, we decide today that the purposes of the 1899 Act prevail, the Limitation Act is inapplicable, and the potential liability of a negligent party for wreck removal costs under the 1899 Act is not limitable.

I.

Appellants' vessel, the M/V Ida Green, an oceanographic research ship, collided with a Norwegian tanker, the M/T Bow Elm, in Galveston Bay Channel on April 24, 1974. A moment later the M/T Bow Elm collided with the A. MacKenzie, a dredge belonging to the Army Corps of Engineers.

The collision caused the A. MacKenzie to sink in midchannel. The ship was a total loss. Worse, the wreck posed a danger to shipping in one of the busiest waterways on the Gulf Coast.

The United States acted immediately. It removed the wreck at a total cost of $3,000,000. On October 24, 1974, the appellants filed a complaint for exoneration from or limitation of liability. Appellants claimed $240,000 as the value of the M/V Ida Green. They sought to limit their total liability to that sum pursuant to § 183(a) of the Limitation Act of 1851, 46 U.S.C. § 183(a). 6 The district court thereupon began, as a matter of course, the limitation proceeding by which all successful claimants against the appellants would share in the $240,000 fund.

Faced with $3,000,000 in wreck removal costs alone and a maximum $240,000 recovery within the limitation proceeding, the government's course was clear. On December 9, 1974, it moved for an order declaring that its claim for wreck removal costs was not subject to the restraining order filed in the limitation proceeding and freeing the government to commence an in personam action against the appellants outside the limitation proceeding. On May 9, 1975, the district court granted the government's motion.

The owners of the M/V Ida Green have taken this interlocutory appeal from that order. Because the government claims only that its recovery will not be subject to limitation in the event the court finds the M/V Ida Green at fault, for purposes of this interlocutory appeal we take as true the government's allegation that the Ida Green's negligence proximately caused the wreck of the A. MacKenzie. Similarly, because the government concedes for this appeal that the Ida Green's negligence was without appellants' "privity or knowledge", we shall assume that appellants have satisfied that condition precedent to invoking the Act. See note 6, supra. 7

II.

The district court offered no reasons for its decision that the United States' claim for wreck removal costs was not limitable other than that "the great weight of authority" supported it. In fact, however, none of the decisions cited involved the government's claim against a negligent third party; all involved the government's claims against owners of the wreck that the government removed.

None of the appellants in the case at bar was an owner of the sunken dredge, the A. MacKenzie. This appeal turns on whether that fact is decisive. In order to assess its significance, we need carefully to examine §§ 10 and 15 of the Rivers and Harbors Act, 33 U.S.C. §§ 403, 409. We shall then show that negligent owners and negligent non-owners have been treated similarly for purposes of affording the government civil remedies under §§ 10 and 15 for wreck removal; that the government's implied civil remedy under § 15 for wreck removal costs against owners has uniformly been held to be non-limitable; and that the policies underlying the non-limitability of the government's recovery against an owner are equally applicable to its recovery against a negligent non-owner of the wreck.

A.

Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, prohibits "(t)he creation of any obstructions not affirmatively authorized by Congress." 8 Section 12 of the 1899 Act both provides the criminal penalty for a violation of § 10 and authorizes the United States to enforce by injunction "the removal of any structures" erected in violation of § 10. 9

Although the 1899 Act specifically addresses the problem of sunken vessels only in § 15, 33 U.S.C. § 409, this court has held that § 10's prohibition of "obstructions" includes sunken vessels. United States v. Cargill, Inc., 367 F.2d 971, 975 (5th Cir. 1966), aff'd on other grounds sub nom. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); United States v. Raven, 500 F.2d 728, 731 (5th Cir. 1974). 10

Section 15 of the Rivers and Harbors Act, 33 U.S.C. § 409, part of the "Wreck Act" proper, specifically addresses the problem of obstructions caused by sunken vessels. Part of the difficulty in construing § 15 arises from its division into three operative clauses. The first clause prohibits the intentional or negligent sinking of a vessel in navigable waters. 11 The second clause applies to all sinkings, whether negligent or accidental. It provides that the owner of the wreck must mark it with a buoy or beacon. The third clause, which also applies to all sinkings, whether innocent or negligent, prescribes that the owner of the wreck shall remove it on pain of being considered to have abandoned the vessel, subjecting it to removal and sale by the government.

Although § 12 of the Act specifically makes violations of § 10 remediable by injunction, the Act provides only a limited remedy for violations of § 15. Section 16, 33 U.S.C. § 411, provides criminal penalties, including fine or imprisonment, for violating § 15. Sections 19 and 20, 33 U.S.C. §§ 414, 415, authorize the government to sell a wreck deemed abandoned by the owner and accord it rights to the proceeds.

This curious statutory structure has given rise to a multitude of questions. What is the relation between § 10 and § 15? Does § 15 exclusively govern the problem of wrecked vessels, or does it share the field with § 10? As we have seen, in Cargill this court answered that § 10's prohibition of "obstructions" included in its scope wrecked vessels. Does a negligent owner who fails to perform his duty to remove a wreck suffer only the consequences of abandonment pursuant to the third clause, thereby insulating himself from any further liability? Do §§ 16, 19 and 20, which provide the criminal penalty and the government's entitlement to the proceeds of selling an abandoned wreck, comprise the government's exclusive remedy for violations of § 15? As we shall see next, the Supreme Court held in Wyandotte Transportation Co. v. United States, supra, that the government has available against negligent parties other "implied" remedies, including injunctive relief and an action for reimbursement of wreck removal expenses when the government removes the wreck.

Once it is recognized that the government can sue for removal expenses under the 1899 Act, are the purposes of that Act and the potential recovery by the government constrained by the Limitation Act? Does the answer to this question depend on which of the three clauses of § 15 apply? Is there a difference in the limitability of the government's recovery when it invokes only the first clause, which is applicable to negligent par...

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