decided: January 23, 1970.
RED STAR TOWING AND TRANSPORTATION COMPANY, AS ASSIGNEE OF BOUCHARD TRANSPORTATION CO., INC., AND OF KOPPERS COMPANY, INC., APPELLANT
DEPARTMENT OF TRANSPORTATION OF THE STATE OF NEW JERSEY (AS SUCCESSOR TO NEW JERSEY STATE HIGHWAY DEPARTMENT), DAVID J. GOLDBERG, COMMISSIONER OF TRANSPORTATION, AND JOHN DOE (NAME 'JOHN DOE' BEING FICTITIOUS, PARTY INTENDED IS BRIDGE TENDER AND OPERATOR), BRIDGE TENDER AND OPERATOR
Before Hastie, Chief Judge, and McLAUGHLIN and Van Dusen, Circuit judges.
Opinion OF THE COURT
Red Star Towing and Transportation Company, a West Virginia Corporation, brought suit in admiralty against the Department of Transportation of the State of New Jersey and David J. Goldberg, in his official capacity as Commissioner of Transportation, to recover for losses resulting from the collision of a barge with the fender system of the Witt-Penn Bridge which is owned by the State and spans the Hackensack River. Plaintiff alleges that the collision was due to defendants' negligence in maintaining a defective fender system and in delaying the opening of the bridge. The district court dismissed the complaint on the ground that the doctrine of sovereign immunity deprived the court of jurisdiction over the defendants. This is an appeal from that judgment.
An unconsenting State is immune from suits brought by individuals under the admiralty jurisdiction of the federal courts.*fn1 Recognizing this, the plaintiff does not deny that the New Jersey Department of Transportation and its Commissioner in his official capacity are normally entitled to immunity from suit. Rather, its theory of liability is that the State of New Jersey has waived its immunity by constructing and operating a bridge in interstate commerce.
The plaintiff argues first, and correctly, that Congress in the exercise of a valid regulatory purpose may condition a State's entry into commerce on the waiver of immunity from suit. Parden v. Terminal Ry. of Alabama State Docks Department, 1964, 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 233; Petty v. Tennessee-Missouri Bridge Commission, 1959, 359 U.S. 275, 79 S. Ct. 785, 3 L. Ed. 2d 804. But the critical question is whether Congress has so conditioned the kind of state activity that caused the harm in suit.
The Parden case involved a suit against a State-owned railroad to recover damages under the Federal Employers' Liability Act. That statute specifically creates a federal cause of action against 'every' common carrier engaged in interstate commerce for the benefit of its employees in such activity.*fn2 The Supreme Court held that Congress intended to include State-owned common carriers within the coverage of the Act, and that Alabama by entering into business as a common carrier by rail 'necessarily consented to such suit as was authorized by that Act.' 377 U.S. at 192, 84 S. Ct. at 1213.
In the present case, by constructing and operating the Witt-Penn Bridge over a navigable waterway, the State of New Jersey became subject to Acts of Congress regulating navigation, among them the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401, 403 (1964), which requires a federal permit for bridge building and prohibits unauthorized obstruction of navigation. But Congress in exercising this regulatory authority over navigation did not, as it had in the Federal Employers' Liability Act, create any civil cause of action in favor of private parties injured by any violation of the Act. Rather, it chose to achieve its regulatory purpose through specific penal sanctions.*fn3
In the Parden case the Supreme Court made clear that the mere entry of a State into a field of congressional regulation will not subject it to suit by private individuals. 377 U.S. at 186, 84 S. Ct. 1207. Congress must express an intent to override the State's immunity. In Parden the Supreme Court found such an intent in the creation by Congress of such a cause of action against private persons as was asserted against the State. However, as has been pointed out, the presently relevant statute regulating the bridging of navigable streams does not confer any new civil remedy upon private parties and thus cannot by logical inference be read as intended to impose equivalent civil liability on an otherwise immune State. A contrary result in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, E.D.Va.1966, 259 F.Supp. 633, aff'd, 4th Cir. 1968, 404 F.2d 1001, seems to be based upon the court's conclusion that the Rivers and Harbors Appropriation Act of 1899 was designed to protect private persons. But that, in our view, is not enough. Where Congress, in providing protection against private violators created no new remedy other than penal sanctions, we think it is illogical to imply that Congress intended that a violation by the State should give rise to a civil claim for damages.*fn4 Moreover, since the State must consent to suit it seems arbitrary to say that the State consents to civil liability that could not be anticipated by reading the relevant federal statute.*fn5
The judgment dismissing the complaint will be affirmed.