Before MARIS, KALODNER and FORMAN, Circuit Judges.
Is the United States entitled to recover the cost of removing a wrecked vessel obstructing a navigable river from its owner who negligently sank the vessel and failed to remove it, after demand, in violation of the Rivers and Harbors Act of 1899, as amended ("Act").*fn1
That is the primary question, of first impression, presented by this appeal by reason of the negative answer given to it by the District Court for the Western District of Pennsylvania.
The District Court granted the motion of the defendant Charles Zubik to dismiss the complaint of the United States seeking recovery of the cost of removing his two sunken vessels from the Allegheny River, and subsequently denied the Government's motion to file an amended complaint. In so doing the District Court held that the Government had failed to state a claim upon which relief could be granted.*fn2
In order to test the legal validity of the complaint, as amended, the allegations of fact therein are taken as admitted and may be summarized as follows:
On November 10, 1951, Zubik owned two towboats, the SS Joe Carter and the SS A.B. Sheetz, which he negligently sank in the Allegheny River, Emsworth Pool ("River") near Pittsburgh, Pennsylvania, in such manner as to obstruct navigation. Zubik failed to remove immediately the sunken vessels, as required by the Act. In March, 1952, Zubik dismantled portions of the SS A.B. Sheetz and deposited materials from it on the bank of the Allegheny River, in such manner as made them liable to be washed off into the River in violation of the Act. In September 1956 (five years after the sinkings), the United States, after Zubik had failed to comply with its demand to do so, removed the wreckage of the sunken SS Joe Carter and SS A.B. Sheetz from the River and the portions of the latter lying on the River bank at a cost of $3,273.83. It then brought an action against Zubik, alleging that the wrecks and wreckage were valueless and the costs of removal went to the "unjust enrichment of the defendant in that amount."
The sum of the Government's contention on this appeal is that while the Act makes no specific provision for the Government's recovery of the cost of removing negligently sunken vessels which obstruct navigation, it nevertheless "contemplates that the persons who have thus unlawfully obstructed navigation shall bear the expenses of alleviating the consequences of their unlawful conduct, rather than the public itself", and that "the fact that a remedy by way of damages is not explicitly accorded to the United States by the relevant provisions of the Act is not a proper basis for deeming such relief precluded."
The Government relies heavily on United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903 as "teaching" that the courts must broadly construe the Act "and formulate and accord remedies appropriate to the effective enforcement of the Act" and that "such remedies are to be fashioned even though they may rest on inferences".
In reply Zubik urges that the Republic Steel case "does not stand for the proposition * * * that the * * * Act should be thrown open to judicially legislated remedies which do not appear in the Act itself", and that it should, in substance, be limited to its express holding that injunctive relief is available to the Government to compel one creating an obstruction to a navigable stream to remove it. Zubik further contends that the Government's rights, when it removes a sunken vessel, are in rem and not in personam.
It must be noted at this point that the District Court considered Republic Steel and subscribed to Zubik's contention with respect to its impact on the instant situation.
We proceed now to consideration of the issue presented for our determination.
As was said in Republic Steel, 362 U.S. at pages 485-86, 80 S. Ct. at page 887:
"The history of federal control over obstructions to the navigable capacity of our rivers and harbors goes back to Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8, 8 S. Ct. 811, 815, 31 L. Ed. 629 , where the Court held 'there is no common law of the United States' which prohibits 'obstructions' in our navigable rivers. Congress acted promptly, forbidding by § 10 of the Rivers and Harbors Act of 1890, 26 Stat. 426, 454, 'the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity' of any waters of the United States. The 1899 Act followed a report to Congress by the Secretary of War, which at the direction of Congress, 29 ...