Wyandotte Transportation Company v. United States

PETITIONER:Wyandotte Transportation Company
RESPONDENT:United States
LOCATION:South Boston Court

DOCKET NO.: 31
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 389 US 191 (1967)
ARGUED: Oct 16, 1967 / Oct 17, 1967
DECIDED: Dec 04, 1967

Facts of the case

Question

  • Oral Argument – October 17, 1967
  • Audio Transcription for Oral Argument – October 17, 1967 in Wyandotte Transportation Company v. United States

    Audio Transcription for Oral Argument – October 16, 1967 in Wyandotte Transportation Company v. United States

    Earl Warren:

    Number 31, Wyandotte Transportation Company et al., petitioners, versus United States.

    Mr. Ray?

    Lucian Y. Ray:

    Mr. Chief Justice, and may I please the Court.

    Two cases are involved here.

    They were consolidated by the District Court for the purpose of disposing of motions for summary judgment and motions to dismiss.

    All of these motions filed by the respondents below and the petitioners here.

    Each of the cases, if the Court please, involve vessels which sank in the Mississippi River in March 1961.

    The facts is to each of accidents are not complicated and with the Court’s permission, I’d like to briefly review them.

    One case involves the barge Wycom 112 which was being towed up the Mississippi River with 1000 tons of liquid chlorine and when the tow got to about seven miles below Natchez, Mississippi that vessel sank.

    The vessel owner attempted to locate the barge was unsuccessful in doing so, tendered abandonment to the Core of engineers, that abandonment was at first rejected and then later on the Court through the District Engineer at Vicksburg, Colonel Edward accepted the abandonment and advised the Wyandotte that the barge would be removed under the provisions of Section 19 of the Rivers and Harbors Act of 1899.

    If the Court is interested in the full letter, it appears on pages 42 and 43 of the record.

    After the abandonment had been accepted, the Core of engineers together with other agencies of the government, raised the barge without a loss of any of the chlorine, the chlorine was taken back to Gainesville, Louisiana where it was pumped into tanks.

    The government filed a liable against the three petitioners in that case seeking the recovery of a little over $3 million for the cost of removal.

    Now, the other case involves two barges, the L1 and M65 which where the Cargill, a barge fleet at Jackson’s Landing which is in Baton Rouge.

    Now two of those barges left the landing and were later found to be sunk and the owners marked those barges for a while and then tendered an abandonment to the Core of engineers.

    The abandonment was rejected and the United States Government, the Department of Justice filed an action for a declaratory judgment asking the Court to require the owners of those barges to mark them and also to declare that they must be removed.

    Now, those barges remained un-removed.

    The barge in the Wycom case, it’s back was broken when it went down and but the tanks and the chlorine were as I’ve said delivered back.

    They were subsequently sold pursuant to the request of the government and the $80,000 that was derived from their sale has been covered into the registry of the Court to await the outcome of this litigation.

    Now, the District Court rendered the motions for summary judgment and dismissed both actions and stated that the only right that the government had to recover removal expenses was against the cargo was against the vessels themselves and the cargo and there was no in personam right.

    The United States Court of Appeals for the Fifth Circuit ruled that a vessel negligently sunk in a navigable channel and I might say, if the Court please, that the negligent issue comes into this case as the Court can appreciate because it was decided on the pleadings.

    We don’t admit for one minute that negligence exists and in fact the Court below has, in its judgment, has centered back to the District Court for determination of both the question of causation and the question of negligence.

    But the Court said that a sunken vessel did constitute an obstruction within the provisions of Section 10 of the Rivers and Harbors Act of 1899 and that the removal of the vessels could be compelled by the injunctive process that is granted by Section 12 of that statute and then they shifted over — then that Court below shifted over and said that because the injunctive process exists you have the alternative right to recover the expenses of removal.

    Potter Stewart:

    May I ask you two questions just to be sure I understand your factual presentation?

    The second case, in addition to the territory judgment was a request for an injunction, was it not, to the —

    Lucian Y. Ray:

    To require and to remove —

    Potter Stewart:

    To require them, the court ordered making them to remove at their own expense?

    Lucian Y. Ray:

    You’re right, you’re right Mr. Justice.

    Potter Stewart:

    And am I also right in my understanding of the case of issues that that however this case is determined whether the District Court was right or the Court of Appeals was right, there could be no question that the Government’s right to the proceeds of the proper sale of the chlorine?

    Lucian Y. Ray:

    We concede that and we conceded in this — conceded here.

    Potter Stewart:

    You said that the, that was being held pending the decision of this case, however, this case decided, the government gets that $80,000.

    Lucian Y. Ray:

    That’s right Your Honor, but as I say it’s being physically kept there until —

    Potter Stewart:

    I understand, but it doesn’t depend that money — government to that money is clear however this case is decided?

    Lucian Y. Ray:

    We absolutely in fact that — it reinforces the District Court’s opinion and it reinforces our position here that that is the only remedy that the government has.

    Now, there are two questions, two major questions if the Court please, which is involved here, one is the overall question.

    Whether a vessel owner or other party who by negligence causes a vessel to sink and become an obstruction to navigation is liable in personam to the United States for the expenses of removing the obstruction.

    Now, the second and it’s to some extent subsidiary, but it’s still a major question, is whether a sunken vessel constitutes an obstruction to navigation under Section 10, the removal of which can be enforced by injunction pursuant to the provisions of Section 12 of the same statute.

    Now —

    Abe Fortas:

    Mr. Ray, you make no distinction between these two cases?

    In other words, you think that these two cases has to be governed by the same principle?

    Lucian Y. Ray:

    Yes, Mr. Justice Fortas.

    Abe Fortas:

    Despite the fact that in one case the abandonment was accepted by the Core of engineers in a letter saying that we’ll proceed to move the chlorine barge under provisions of Section 19 and then the other case the United States appears to accept the abandonment?

    Lucian Y. Ray:

    We pray Your Honor that that abandonment is not a condition precedent.

    In other words, as I’ll develop further on, in the argument when we consider the Sections 15, 19 and 20 in certain situations abandonment is assumed, in other words, the failure to take any action creates abandonment, as a matter of law.

    Abe Fortas:

    There are two questions, one is abandonment and the other is United States acceptance of the abandonment.

    Lucian Y. Ray:

    Yes, but we say —

    Abe Fortas:

    And also United States notification which happened in the case of the rights to [Inaudible] United States notification to the owner that the United States is proceeding under Section 19, am I correct Section 19 —

    Lucian Y. Ray:

    The Section —

    Abe Fortas:

    — says that the Secretary will proceed without liability or damage to the owners?

    Lucian Y. Ray:

    What you see but we want to be certain Mr. Justice Fortas and they’re used interchangeably in the decisions and the statute.

    We have tried not to use them interchangeably in our briefs but you have the sections of the Act, and when he was talking about Section 19 of the Act, he was talking about 33 U.S.C.A 440.

    Abe Fortas:

    Yes, that’s one I am referring to, that is Section 19.

    Lucian Y. Ray:

    That is Section 19.

    Abe Fortas:

    Yeah.

    Lucian Y. Ray:

    In which title is given to the government, what is removed and of course that’s what happened, that’s just what happened in this situation.

    Abe Fortas:

    Yeah but in the second case, Cargill case there was no such statement by around the house in the United States.

    Lucian Y. Ray:

    That’s right Mr. Justice Fortas.

    They rejected the abandonment and what they are trying to do because those barges are still there, they have nothing to get the court to force the owner to remove it, remove them and if they don’t and the government has to do it they will pay the cost of removal.

    Abe Fortas:

    I just trying to get your position and I take it now that your position is those differences in the past should make no differences in the legal results?

    Lucian Y. Ray:

    That’s our position and apparently it was the position of both courts below because the District Court as I have stated consolidated them and granted the motions to dismiss which were filed by the respondents in both cases and so they, the cases have come up together and are before this Court together.

    Lucian Y. Ray:

    Now we think this is a most unique situation, if the Court please.

    This statute — the statute of 1899, the Rivers and Harbors Act of 1899 has been in existence for 68 years.

    Back in 1923 the United States Government and principally the Department of Justice, but the moving body in the attempt to recover the expenses of removal was of course the Core of Engineers.

    Back in 1923 they began to attempt to recover in personam against vessel owners for removal expenses.

    Way back in the Laud case versus United States in the Sixth Circuit after 43 years they have attempted unsuccessfully until this decision below to have a court declare that a sunken vessel was an obstruction of — to navigation within Section 10 of the Rivers and Harbors Act.

    This is the only decision on the books and I say this, I appreciate this as this Court does that there isn’t any — that numbers alone do not establish the soundness of a doctrine but if a decision stands alone when you have 11 cases and they are in the Second Circuit, the Third Circuit, the Fourth Circuit, and the Ninth Circuit and I’ll mention three cases right now that this Court is very familiar with, involving this situation.

    One is the Texmar decision that, where certiorari was applied for from the Ninth Circuit and where certiorari was denied.

    There is the Marine Towing Company case that’s as recent, half — six months ago in which the Fourth Circuit declined to follow the decision below and in which certiorari application, for which certiorari is now pending in this Court and then there the Zubik case in the Third Circuit.

    Now all three of those decisions and then the decisions, other decisions, in other words the 11 decisions in there entirely have declined to follow a decision of this Court below.

    Now the other side of that coin is that this Court has said on several occasions, that where you have a uniform construction of a statute over a long period of time that construction should not be upset rightly and I simply want to read because it’s very short.

    What this Court said in the United States versus Ryan case in that connection, it said “we should have the state to set aside at this late date the uniform construction given to the section with respect to this question by the lower courts for more than 60 years.”

    Now we don’t have quite 60 years in this case, but we have 43 years and we say that, we say that if one circuit Court of Appeals comes along and has the only decision that goes down this particular path that it simply can’t be right in all the rest of these Federal Courts and three — and the Federal Courts and in Circuit Courts of Appeals and four other circuits are wrong.

    Now, if the Court please there is nothing in the history of the Rivers and Harbors Act of 1899 nor in the provisions of Section 10 on that Act which makes it applicable to negligently sunken vessels.

    You can look whether — you can look with absolute, you can scan every word in Section 10 and you will not find a single reference to a vessel sunken or otherwise.

    Now I ask this Court to bear with me for just a minute to view the historic background that will demonstrate I think, that Congress has since its inception been concerned about sunken vessels as separate entity as entities that are separate from piers and break waters and from the depositing of industrial wastes which Mr. Justice Douglas brought about in the Republic Steel case.

    Now as long ago as 1824 Congress enacted the first legislation having to do with the improvement of navigation and it had to do in general terms with improving the navigation of the Ohio and Mississippi rivers.

    Then between 1824 and 1880 where you had sunken vessels, they had to go to Congress and get individual private Acts, they were separate Acts that had to do with the removal of those individual wrecks.

    Then you come up to 1890, no in 1880 they had their first, they had their first legislation where they had a continuing appropriation to take care of the removal of wrecks.

    And then they got in 1890, they added a provision which set forth the wrecks not raised within two months become derelicts and the United States could declare them an obstruction and they could be removed without any liability to the owner.

    Now all of this, if the Court please, was background for what this Court has described as legislation envisioning a grand design covering the navigation — the navigability of rivers and the removal of obstructions and that’s the Rivers and Harbors Act of 1899.

    Now there are three sections in that Rivers and Harbors Act, 15, 19 and 20.

    They all relate to vessels, all relate to vessels, all of them specify, all of them specify what shall be done in different situations.

    Now for example, for example Section 15 provides that the, there shall be that the vessel owner when a vessel sinks must mark the vessel, that the failure to do so is to be considered an abandonment and subject the vessel to removal.

    Section 19 provides that if nothing has been done by the vessel owner in 30 days or if he abandons prior to 30 days then the Core of Engineers can remove and what they do from a practical standpoint as this Court knows is they, is they enter into a contract for the removal and then they sell the wreck and the money that they get is deposited into the Treasury of the United States.

    Now Section 20 involves emergency situations.

    Abe Fortas:

    Well before you leave Section 15 may I ask you this.

    The — towards the end of that Section it says it should be the duty of the owner, said something prior to prosecute the removal of it diligently, right?

    And failure to do so shall be considered an abandonment of such craft and subject the same removal by the United States.

    Now if you regard the, both of these cases as coming within Section 15, I suppose the question is whether any specific language that I have just read is preclusive of other remedies to the United States, that is to say the statute does say that it should be the duty of owner to commence removal immediately?

    That’s right.

    Lucian Y. Ray:

    That’s right.

    Abe Fortas:

    And to prosecute the removal diligently then the statute says that if you then do so that will be considered abandoned?

    Lucian Y. Ray:

    That’s right.

    Abe Fortas:

    Question is whether that is preclusive of why then the United State is seeking an injunction to compel the owner to commence immediate removal of the wreck and prosecute —

    Lucian Y. Ray:

    We feel that it is if the Court please.

    Abe Fortas:

    But that is, is that to your mind a key or governing sections?

    Lucian Y. Ray:

    Well, it’s certainly is a key or governing situation in as far as the two sunken barges whereas the government is seeking an injunction–

    Abe Fortas:

    Yes.

    Lucian Y. Ray:

    Now as the Colonel Edward indicated you see, he had a different situation in Wycom because this had gone on for a substantial period of time.

    And so they concluded to proceed under Section 19 which provides that if after 30 days nothing has been done, it’s declared abandoned and then the go ahead and remove it and that’s what they did.

    Now we say under both those sections that there is no in personam right first of all to get an injunction against the owners of the barges or the recovery expenses and in the Wycom case to recover expenses.

    Now we say this if the Court please, if I think, I hope I demonstrated that for more than a 100 years Congress had considered sunken vessels as separate entities and I think it’s significant that these three sections that I am talking, that I have talked about are called wreck statutes, in other words they apply to sunken vessel.

    Now if the court below were correct in saying that a sunken vessel is an obstruction within Section 10, first of all I don’t have to suggest to this Court how easy it would have been for Congress to have included vessels when they were talking about in Section 10, such things as break waters and the depositing of waste.

    Now the court did not do that because it had these other three sections, this part applies, specifically the sunken vessel.

    And it seems to me and to us that the Court will have to conclude, this Court will have to conclude that if the wreck statute, I mean if Section 10 contemplates vessels as the court below said, then the wreck statute is 100% redundant, there wouldn’t be any reason for it.

    Byron R. White:

    Well, I would think that the wreck statute would have some basis in declaring that after a certain length of time the vessels shall be declared — shall be deemed abandoned, the United States shall not be liable for any damages and providing a scheme whereby the secretary is or the core is authorized to seek bids, things like that, plenty of basis for —

    Lucian Y. Ray:

    Mr. Justice White I can see that — I can see that it, well in fact what you are now saying is what we are saying is what it does.

    In other words, it specifies the thing.

    Byron R. White:

    Well, I know but that doesn’t follow from that that it’s superfluous if a wreck is an obstruction under 10.

    As a matter of fact that, the wreck statute speaks of wreck as some times vessels of obstruction.

    Lucian Y. Ray:

    Section 10.

    Byron R. White:

    Section of the wreck statute, speaks of something vessels as obstruction?

    Lucian Y. Ray:

    Well that’s right, but it certainly does speak of them as obstructions under Section 10 and of course the thing that this Court has got to determine is whether a sunken vessel is an obstruction under —

    Byron R. White:

    What about Section 20?

    In an emergency situation apparently in sunken vessel the secretary may Act immediately removing himself, then it says if the owners, thereby fail to refuse reimburse the United States for such expense within a certain time then the wreck, the craft maybe sold and the proceeds go into the treasury, that doesn’t indicate this, that indicates the ownership liable to United States.

    Lucian Y. Ray:

    Well, no I think it indicates exactly the opposite.

    In another words, it has provided, it has provided an exclusive remedy.

    In other words we say —

    Byron R. White:

    You mean limit on the liability.

    Lucian Y. Ray:

    Well, what I am saying [Attempt to Laughter] is, that it’s exclusive remedy Mr. Justice White.

    Lucian Y. Ray:

    In another words I say this, that one of the drafters of the 1899 Act were considering the remedies, they had various remedies to consider.

    Now we say what they chose out of all these remedies was the in another words they could have provided with simplicity, the right to recover in personam.

    Now it’s perfectly obvious that they didn’t do that and we say that having checked these various alternatives and written into the statute that if a vessel has been sunken and is removed by the United States and then sold, that is the remedy.

    In another words, an action in rem, a remedy in rem is the only remedy that exists and in another words it negates.

    Byron R. White:

    So you think in case of a wreck, something wreck, the United States may not sit quietly by and just sue in court.

    It’s only remedy is go remove that wreck itself if the owner doesn’t.

    Lucian Y. Ray:

    That’s I say this that if the that’s right I say —

    Byron R. White:

    It has been — recorded and enforced, as Mr. Justice Fortas indicated the specific obligation to remove the wreck which is provided in Section 15?

    Lucian Y. Ray:

    I say that well there isn’t any specific, and 15 doesn’t give any injunctive relief.

    Byron R. White:

    But and I know it that expressly, but that’s the duty on the owner to remove it.

    Lucian Y. Ray:

    But if he doesn’t then the government has to do it.

    In another words I think this, all of these cases we think is, all of these cases we’ve told this Court about have said that the removal of obstructions by the, as a public function.

    In another words, that is how the statute has been written and I say this to the Court.

    I feel certain, now I can’t base this upon anything except my own personal knowledge in connection with this type of work, but I say this to the Court that in the vast majority of the cases where sunken vessels are removed, the sale of the wreck and the cargo in the vast majority of cases picks up the tab, in other words there isn’t drain on the public treasury.

    Now in this situation where they are attempting to recover $3 million of course the value, that doesn’t apply.

    That $3 million [Inaudible]

    Lucian Y. Ray:

    Well, here is — this was the situation Mr. Justice Harlan, when this developed the Core of Engineers and the other branches of the government brought about the sending of 2000 national guardsmen from Oxford Mississippi to Natchez.

    They send in 30,000 gas masks, they got ready to evacuate the entire population of Natchez, Mississippi and they did actually begin the evacuation of some of the people in the hospital.

    Now the liable of the United States says that $1,500,000 for the expenses I have just described and $1,500,000 for the actual expense of removal, actual getting of the marine equipment in there to get the sunken tanks with chlorine up as I say not a drop was spilled and they got it back with safety to everybody.

    Now I don’t want to leave my argument without brining to the attention to the Court, the Court is aware that a brief amicus curiae has been filed and I want to emphasize to this Court that if the decision below if affirmed it will have a mark and in some instances a devastating impact and I say that for this reason.

    For the past 60 years while the, well I see that my time is up.

    Earl Warren:

    Well you might finish that statement briefly.

    Lucian Y. Ray:

    For the past 60 years the insurance has been in existence — has not taken into consideration the removal expenses because none have inflected.

    If this Court affirms, the insurance premiums will go out of sight and I say to this Court that the small vessel operators may have to go out of business.

    Thank you very much.

    Abe Fortas:

    What is the rule in the United Kingdom, is there one?

    Lucian Y. Ray:

    United Kingdom pardon me.

    Abe Fortas:

    Yes.

    Lucian Y. Ray:

    United Kingdom has a statute, has a statute specifying that the expenses of removal are recoverable in personam.

    Canada has the same thing.

    Lucian Y. Ray:

    There are six Bills now pending in Congress for that and we say that’s where the department should go to gets its relief and not to this Court.

    Thank you very much.

    Earl Warren:

    Mr. Rosenthal.

    Alan S. Rosenthal:

    Mr. Chief Justice, may it please this Court.

    As this Court observed in the Republic Steel case, Rivers and Harbors Act of 1899 was part of a great design to facilitate unimpeded flow of water commerce over our nation’s waterways by ensuring the existence of navigable channels free from obstructions.

    Now the question in this case reduced to a simple form, is whether or not those and this case doesn’t involve just ship owners it also involves others, negligently create obstructions in the navigable waters of the United States in violation of two, not one, but two express prohibitions in the Rivers and Harbors Act as well as in derogation of common law responsibilities relating to the maintenance of public nuisances and who having violated the Act then have failed to comply with an explicit statutory command to remove the obstruction can be compelled by judicial process either to remove it or as in the case of the Wycom 112 where the government was required to affect removal and be required to reimburse the United States the expense incurred by the public treasury in affecting the people.

    If the Court pleases we believe starting point is that the court below held Section 10 of the Rivers and Harbors Act, Section 10 in turn prohibits the creation of any not just some but any obstruction not affirmatively authorized by Congress to the navigable capacity to any of waters in the United States.

    Now as this Court observed in Republic Steel case, the cause of holding that industrial waste constituted the obstruction within the meaning of Section 10 term obstruction has been given by the Court, a very broad reading.

    It encompasses that this Court said many, many years ago in the Rio Grande Irrigation Company, anything whatever done or however done within the limits of the jurisdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of the United States.

    Now I don’t see how it can be argued that a sunken vessel any less than a dam or industrial wastes constitutes and obstruction within the meaning of that definition.

    Furthermore, Section 10 as this Court observed in Public Steel case was intended to codify the existing law and making 1894, five years before the enactment of the 1899 Act the Court of Appeals for the First Circuit have held that a sunken vessel was an obstruction within the meaning of Section 10 of 1890 Act, which Act contained similar language in Section 10, Section 10 of 1899 statute.

    Now being within Section 10, we submit that the petitioners here are under the doctrine of Republic Steel case responsible for the removal of the vessel or for the removal to assume the costs of the removal by the United States.

    Now the violation of Section 10’s prohibition has made it crime by Section 12 of the Act and this is settled rule that the disregard the command of a penal statute is a wrongful Act for which the courts will imply a right to recover damages from the attending party.

    This a rule which is illustrated by such decisions of this Court as Texas & Pacific Rail Road versus Rigsby and J.I. Case Company versus Borak relatively recent decision, 377 United States.

    Now we think it was this general principal that was at the bottom of the determination in Republic Steel that despite the absence of an express provision for injunctive relief that Section 10 carried with it the implicit remedy of injunction where as here an obstruction to navigable waters have been created.

    Abe Fortas:

    But there is an express provision for injunction, isn’t there?

    In Section 12 there is an expressed provision for a injunction, which relates back to Section 10 but the problem there is it, it talks in terms of removal of any structures or parts of structures and the language doesn’t seem to me as broad as language of Section 10 which says that creation of any obstruction is prohibited.

    Alan S. Rosenthal:

    Yes Mr. Justice Fortas, actually in the Republic Steel case the Court of Appeals had held that the United States was not entitled to an injunction under Section 10 where the obstruction did not constitute a structure and the Court had relied upon the fact that Section 12 had conferred a specific right with respect to structures and therefore proceeded on the assumption that Congress did not intend injunctive relief to available where the obstruction did not constitute a structure and this Court reversed that determination holding that the Section 10 taken in the context of its great design permitted the implication of those remedies, which are appropriate to the carrying out of that design.

    Now we think the injunctive remedy is plainly within the scope of permissible remedies, indeed Republic Steel still holds and we think as two Courts of Appeals have recognized that another appropriate remedy where necessary as this, the case with Wycom 112 is the remedy of — of recovering removal costs.

    There is certainly no reason as the Second Circuit pointed out from paving why the offender should escape his due merely because the situation is such the government feels compelled to go into court rather to remove the vessel at the outset rather than to pursue its often slow injunctive remedies.

    Now even if Court pleases Section 10 did not embrace the obstruction in this case.

    It is conceded as we understand it that this obstruction created by negligence was a violation of Section 15, which makes it unlawful to voluntarily or carelessly sink or permit or caused to be sunk vessels or other crafts in navigable channels.

    Now despite the fact Section 15 goes on to impose an affirmative express duty upon he who causes an obstruction, indeed causes an obstruction even innocently to remove the obstruction, seek to immediately remove the obstruction.

    The position of these petitioners is that they do not need to comply with that duty.

    All that they need to do is to tell the Core of Engineers that even though this obstruction was occasioned negligently, even though they have the statutory duty, they are abandoning the vessel and at that point the consequences of their negligence falls upon the United States and upon the public treasury.

    Now we submit that there —

    Abe Fortas:

    And that sort of what the statute says at least the first part of it of what you just said.

    Let us say that if a owner does not remove the wreck then failure to do so should be considered as an abandonment of such craft and subject the same to removal by the United States and what you have to argue, I’m taking what you are arguing is that the explicit remedies, a fact that negligence sinking or willful sinking of the ship is a crime and punishable as statute provides.

    Fact that sinking and abandonment of the ship enables the United States to take it and to sell it and sell the cargo that despite the specific reference to those remedies, there are two other remedies namely, they are not specified, namely injunction and in personam liability?

    Alan S. Rosenthal:

    Yes Mr. Justice Fortas, I would say in that connection this.

    Alan S. Rosenthal:

    The reason for the provisions in Section 15 and again in Section 19 with respect to the abandonment of vessels was not the immunization of negligent ship owners and others from liability in these circumstances.

    The reason that these provisions were inserted and I might say that they apply not only in the case of negligibly sunk vessels, but also in the case of innocently sunk vessels where the vessel sinks without any fault upon the owner was to provide immunity to the United States if it sought to remove the vessel and the United States has had to from time to time invoke those provisions for that purpose.

    An example of that is the first Zubik case, Zubik against the United States where Zubik was challenging the right of the United States to remove and to retain a sunken vessel.

    And as the Court observed in that case the statute conferred upon the United States the right where the vessel has been abandoned by the owner, this is irrespective again whether the owner is at fault or not, to step in, if it feels necessary to do so to remove the vessel and it is given then the right to disposal of the vessel.

    Now there is no suggestion at all that in those provisions, Congress was intending to change the settled rule of the limitation of liability Act, an Act which I might say until their reply brief filed at least received by us just today, the petitioners entirely ignored.

    Now the Limitation of Liability Act enacted in 1851 as construed consistently by this Court restricts the right of the owner, ship owner to limit his liability to the value of the vessel and its cargo then pending that’s after all what the petitioners are seeking to do here to cases in which the loss or the damage was without the owner’s perfidy or fault or knowledge rather and that has been construed by this Court to mean without the owners fault.

    Now it’s utterly inconceivable to us if the Court pleases that in 1899 when Congress was enacting, what again this Court has recognized to be this great design for the protection of our navigable waters, the Congress on the one hand imposed these affirmative responsibilities upon the ship owner and on the other hand said to the ship owner if you violate them then your rights are greater — are greater than the rights which you had under the limitation of Liability Act of 1851.

    It would be we respectfully submit to attribute to Congress a completely perverse intent, to subscribe to the view of the petitioners in this case that Congress intended that those who negligibly obstruct our waters to be able to trust upon the public treasury, the responsibility for removing those obstructions.

    Now if the Court pleases I think that some just passing reference should be made —

    Have you filed anything [Inaudible]

    Alan S. Rosenthal:

    Your Honor, this Rivers and Harbors Act as well as most them contain very little legislative history at all.

    There is essentially what I think are colloquially referred to pork barrel bills.

    The legislative history of the 1899 Act does indicate however that it was not intended to change existing law, but it was a codification of existing law and that too I think was recognized by this Court in Republic Steel.

    Now we have set forth in our brief the 1880, the relevant provisions of 1880, 1882 and 1890 Acts and we think that those acts taken in combination certainly bare out our contention that when Congress was addressing itself to these specific remedies these were remedies which were designed for the protection of the United States against a suit by the ship owner who might have claim that his vessel has innocently sunk and if the United States had had no right to remove it and then to cart it off.

    [Inaudible]

    Alan S. Rosenthal:

    Our statutory remedy that’s correct, but this, we respectfully submit Mr. Justice Harlan that on that the remedy is to be applied here not only on the basis, again of Republic Steel but on the basis of the principle illustrated again by the Rigsby case to which I referred before.

    Now I think that it should bear a mention that we do not accept the petitioner’s position that it has been held 11 times over a period of 40 years that these rights do not exist.

    Actually in the context of a negligent ship owner the question has come up really, squarely presented in three cases.

    Those were Texmar decided by the Ninth Circuit which decision was against United States by a divided vote and the recent decision of the Fourth Circuit which also was against United States there too by divided vote, Judge Browning dissented in the Ninth Circuit, Judge Sobeloff dissented in the Fourth Circuit and the unanimous decision in the government’s favor in the case which is before this Court at this time for review.

    Hugo L. Black:

    You say that’s the complete history —

    Alan S. Rosenthal:

    I’m saying that that is the complete history in terms of the right of a negligent ship owner to abandon his vessel with impunity.

    Now the only other court case, American case which dealt with a negligent ship owner as such was the second Zubik case.

    In the second Zubik case, the Court regarded Section 10 as applying to sunken vessels but it took the position that only in rem remedies were provided by the Act and that’s a position we think is wrong.

    But it in terms of the question of the ship owner’s right to abandon it is just these three cases about a negligent ship owner.

    Thank you, sir.