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UNITED STATES v. OHIO BARGE LINES

June 9, 1977

UNITED STATES of America
v.
OHIO BARGE LINES, INC., in personam and M/V Steel Forwarder, her engines, tackle, appurtenances, etc., in rem



The opinion of the court was delivered by: ROSENBERG

 This matter is before me on motions filed by the defendants, Ohio Barge Lines, Inc. (Ohio Barge) and the M/V Steel Forwarder (Forwarder), a river going vessel owned by Ohio Barge, to dismiss the complaint filed against them by the United States pursuant to Rule 12(b)(6), Federal Rule of Civil Procedure. The defendant Ohio Barge alleges that the plaintiff's claim asserting a violation of § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 fails to state a claim against it, while the defendant Forwarder alleges that the plaintiff's claim of a violation of § 10 and § 15 of the Act, 33 U.S.C. § 403 and § 409 fails to state a claim against it. Section 403 states as follows:

 
"Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in
 
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of a wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same."

 Section 409 reads as follows:

 
"Obstruction of navigable waters by vessels; floating timber; marking and removal of sunken vessels
 
It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; or to voluntarily or carelessly sink or permit or cause to be sunk, vessels or other craft in navigable channels; or to float loose timber and logs, or to float what is known as 'sack rafts of timber and logs' in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation. And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411 to 416, 418 and 502 of this title."

 For the purpose of making a determination on a motion to dismiss and reviewing the facts, the complaint is reviewed in the light most favorable to the plaintiff and its allegations are taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Curtis v. Everette, 489 F.2d 516, C.A. 3, 1973, cert. den. 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1973).

 The Government alleges that on or about June 27, 1972, the Forwarder was pushing seventeen barges upstream nearing Mile 846.0 on the Ohio River at the Government's Uniontown Lock and Dam site when it "willfully, voluntarily, carelessly and/or negligently caused or permitted to sink three barges in its tow." Plaintiff's complaint, paragraph 7. Due to this sinking the Government contends that an obstruction to navigation was caused and in order to ensure the safety and welfare of river traffic, the Corps of Engineers determined that a helper boat would be necessary to escort traffic at the Uniontown Lock as long as the obstruction remained and the salvaging operation continued. After Ohio Barge declined to provide a helper boat, the Corps of Engineers contracted for the services of the Tì Jefferey Lynn from July 24, 1972 through August 20, 1972 for $15,680.00.

 The Government has filed this action pursuant to the above incident claiming that the defendants caused an obstruction in navigation in violation of 33 U.S.C. § 403 and § 409 and were therefore under a duty to provide or pay for services rendered by the helper boat, Tì Jefferey Lynn, as well as removing the obstruction. The Government also alleges that the obstruction was a nuisance and an obstruction to navigation in violation of the general maritime laws.

 The defendant Ohio Barge moves only to dismiss the Government's statutory claims on the basis that the Government has no cause of action against it pursuant to § 10 of the Act, 33 U.S.C. § 403, because the law of the Third Circuit is that unintentional sinking of a barge creates no in personam rights under § 10 of the Act and a negligently sunken barge is no obstruction.

 An interpretation of the first clause of § 10 is the crux of the problem with a special concern for the word "obstruction". Although there is a recognized conflict among the Circuits as to whether or not a sunken vessel qualifies as an "obstruction" in § 10, in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 196, n. 5, 88 S. Ct. 379, 19 L. Ed. 2d 407 (1967), a broad interpretation must be given to § 10 and in turn to the purpose or scope of the Act. United States v. Republic, 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903 (1960).

 The defendant Ohio Barge misplaces reliance on three cases: United States v. Zubik, 295 F.2d 53, C.A. 3, 1961; The Manhattan, 85 F.2d 427, C.A. 3, 1936 and United States v. Bigan, 170 F. Supp. 219 (D.C.Pa.1959), aff'd 274 F.2d 729, C.A. 3, 1960, which it claims stand for the proposition that an unintentional sinking of a barge creates no in personam rights under § 10 and that a sunken barge is no obstruction. A careful reading discloses that The Manhatten, supra, never even deals with § 10 of the Act in question, and United States v. Zubik, supra, which applies the theory that removal expenses for sunken vessels are not authorized by the Act, was reversed by Wyandotte, supra, which held:

 
". . . Petitioners' interpretation of the Rivers and Harbors Act of 1899 would ascribe to Congress an intent at variance with the purpose of that statute. Petitioners' proposal is, moreover, in disharmony with our own prior construction of the Act, with our decisions on analogous issues of statutory construction, and with a major maritime statute of the United States. If there were no other reasonable interpretation of the statute, or if petitioners could adduce some persuasive indication that their interpretation accords with the congressional intent, we might be more disposed to accept that interpretation. But our reading of the Act does not lead us to the conclusion that Congress must have intended the statutory remedies and procedures to be exclusive of all others. There is no indication anywhere else -- in the legislative history of the Act, in the predecessor statutes, or in nonstatutory law -- that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specified ...

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