WYANDOTTE CO. v. UNITED STATES

Argument of Alan S. Rosenthal

Chief Justice Earl Warren: -- and Company petitioners versus United States.

Mr. Rosenthal you may continue your argument.

Mr. Alan S. Rosenthal: Mr. Chief Justice, and may it please the Court.

To briefly recapitulate, it’s the government’s position that the negligence sinking of a vessel which creates an obstruction to navigation violates both Section 10 and Section 15 of Rivers and Harbors Act.

And under this Court’s decision in Republic Steel as well as under the settled principle reflected by this Court’s decision, for example in Texas Pacific Railway versus Rigsby, there is in personam liability on the part of these petitioners either -- they can be compelled by injunction to remove the vessel or the Unite States is required to remove it, they can be compelled to reimburse the government for removal expenses.

And third that the petitioners cannot avoid a responsibility by relying on their abandonment of the vessel, that the Rivers and Harbors Act of 1899 particularly when viewed in context of its great design cannot be read as repealing the limitation of the Liability Act of 1851, which act as construed by this Court permits a ship owner to limit its liability to the value of its vessel and the cargo only in circumstances where there is no fault attributable to the ship owner.

I might stress in that connection that quite apart from the matter of limitation of Liability Act some of the petitioners in this case are not ship owners at all.

They were not the owners of the sunken vessel as one, at least one petitioner of each case that falls into that classification and the right of abandonment even if it existed where there has been thought would not be of any benefit to them.

Now the --

Unknown Speaker: [Inaudible]

Mr. Alan S. Rosenthal: In one case Your Honor the petitioner was the owner of the boat which towed The Wycam 112.

In the other case the Cargill, petitioner Cargill was the owner and operator of the mooring facility at which the two barges were located and one of the allegations of negligence or at least one of the allegations of negligence relates to negligent mooring.

Now we -- on this aspect of the case I would close by simply pointing out again that as Judge Browning noted in his dissent in the Texmar case where he considered all of these cases upon which the petitioner has relied that none of them are in point.

In contrast to that within a matter of two years after the passage of Rivers and Harbors Act in 1899, the Act was administratively construed by the Secretary of War as requiring in cases of fault, the ship owner to remove the vessel and that administrative interpretation now appears in the code of Federal regulations and is quoted in the government’s brief.

Justice John M. Harlan: Now they have a Bill in Congress now that deals with this specific -–

Mr. Alan S. Rosenthal: There are Bills Your Honor, but there is nothing in the legislative history such as it is of those Bills to suggest that the sponsors of that legislation felt that the existing law did not provide the remedies which the government urges flow from the Rivers and Harbors Act.

The reason for the introduction of those Bills was the decision of the Ninth Circuit in the Texmar case three or four years ago and the legislation was intended to be a clarification.

And at this juncture as I understand it with the question now before this Court, there is no further endeavor being made with respect to that legislation.

We don’t think that the pendency of that legislation in recent years in any way reflects the view on the part of the Congress that the Rivers and Harbors Act itself does not, by implications under the doctrine of Republic Steel and Texas Pacific Railway against Rigsby provide the remedy which we urge here.

Justice Abe Fortas: Is there an official statement that the legislation was intended to be only clarifying?

Does it appear somewhere in legislation?

Mr. Alan S. Rosenthal: There is one committee report, I don’t think it uses the word clarification as such, but we think that the, we’ve cited in our brief the, this legislative history.

We think that the thrust of it certainly is that the Congress, at least the sponsors of that legislation were very concerned about the construction which had been given the act in the Texmar case.

And that as I suggested yesterday actually was the first case which had construed the act as being totally unavailable in the case of negligent ship owners.

Now the Third Circuit in 1961 in United States versus Zubik held that a negligently sunk vessel was within Section 10 and that the government could obtain an injunction requiring removal.

It's true that the Third Circuit in that case went on the hold that, where the government had removed the vessel it was limited to in rem remedies, but the Texmar was the first case which suggested that the -- a ship owner who violates the Rivers and Harbors Act not only by creating an obstruction but then by failing to fulfill his duty to remove can escape any responsibility by simply abandoning the vessel.

Justice Potter Stewart: Well Mr. Rosenthal isn’t it true the earlier cases just didn’t deal with question about whether or not the sinking had resulted from negligence or not?

Mr. Alan S. Rosenthal: Your Honor in most of the earlier cases --

Justice Potter Stewart: And now with the government is limited to the, to an in rem recovery?

Mr. Alan S. Rosenthal: The most of earlier cases Your Honor either did not involve abandonment or involve an innocent sinking.

Now for example the Manhattan, which is the case upon which the petitioners place perhaps the greatest reliance, The Manhattan, a government vessel had sunk through the negligence of another and there was not question in the case.

The Court’s determination makes abundantly clear that the sinking was of the government vessel insofar as the owner, the government was concerned was entirely without fault and the government endeavored to obtain from the tortfeasor, the cost incurred by the government in removing its own vessel and the Court said that since the government had not been responsible for removing it since it had the right of abandonment, therefore it could not recover this cost since it had no responsibility to remove in the first instance.

Now not only was the Manhattan a sinking, an innocent sinking insofar as the ship owner was concerned, but in addition the Manhattan relied upon English cases which as we note in our brief make it clear that the right of abandonment is dependent upon the sinking being an innocent one.

Justice Potter Stewart: The United Kingdom has a different statute, is it not?

Mr. Alan S. Rosenthal: United Kingdom Your Honor has a different statute that is quite true.

They also in United Kingdom --

Justice Potter Stewart: Question is here, the meaning of these statutes, here in the United States?

Mr. Alan S. Rosenthal: That’s correct.

Justice Potter Stewart: Passed by our Congress?

Mr. Alan S. Rosenthal: That’s correct, that’s right.

The English have a different statute but the English also I might –

Justice Potter Stewart: Also the law is quite different, the United Kingdom dose not own the beds of the rivers in the England as I understand?

Mr. Alan S. Rosenthal: That if Your Honor pleases is true although we contend that United States has a definite proprietary interest in the waters of the navigable waters of the Untied States and that relates the our alternative contention which was not reached by the court below and that is that in addition to violating their statutory obligations the petitioners violated their long standing non-statutory obligations recognized by this Court as far back as the 12 Peters in the Mayor of the City of Georgetown against the Alexandria Canal Company.

This is an obligation not to create an obstruction in a public or on a public highway and as this Court observed in the Georgetown case, they involved the Potomac river, navigable waters are public highways for the purposes of the docking and the Court held in that case that the individual who creates a public nuisance in a navigable water can be required to remove that nuisance.

We require through the injunctive --

Justice Hugo L. Black: Was it based on any statute?

Mr. Alan S. Rosenthal: No, Your Honor it was based upon a non-statutory obligation.

Now we submit that in this case, the United States has a sufficient interest in the navigable waters of the United States.

First it has a regulatory interest stemming from its constitutional power to regulate commerce over our waterways and second it has a proprietary interest not only because it is the guardian of the waters on behalf of the people who own those waters which this Court has said is the people of the United States but also because the United States is consistently making improvements in the navigable waters.

The Mississippi in particular and this we believe is sufficient under the principles of such cases as San Jacinto Tin and Cotton against United States and In Re Debts for the United States without, even with a statute to assert the right --

Justice Hugo L. Black: You mean under the common law, a court made liability?

Mr. Alan S. Rosenthal: That’s correct Your Honor and this we suggest is a recognized liability.

Now in conclusion I would like to address myself very briefly to the point that was made by the amicus curiae in this brief and was reiterated yesterday by Mr. Ray and that is that the effect of an affirmance in this case would be to bankrupt many water carriers and we think that there is absolutely no basis for that suggestion at all.

The fact to the matter is, as this appears in this record in this case, the standard protection and indemnity insurance form covers this kind of liability.

Now in the case of substantial barges which are carrying chlorine gas, the premiums needless to say maybe high, but so I would suppose the premiums are quite high on commercial airlines.

In the case of small fishing vessels where the risk is much less where the cost of removal would be much smaller presumably the premiums would be much lower.

But we find it quite startling quite frankly that it is contended that this Court should hold that negligent ship owners should be insulated from the consequences of their negligence simply because if they are saddled with the consequences of that negligence it may occasion financial damage.

I mean this is a consequence which anyone in any business must undertake and again insurance is very definitely available in this area.

So for these reasons we respectfully submit that the judgment of the Court of Appeals for the Fifth Circuit should be affirmed either both on the grounds that there is an implicit right conferred by the Rivers and Harbors Act to recover the cost of removal or to obtain an injunction to require a mobile or on the ground that there is a long established common law obligation on the part of ship owners who create public nuisances in the nation's waterways which obligation can be enforced by the United States.

Justice Byron R. White: What’s the position of the United States in respect to criminal liability in this situation?

Mr. Alan S. Rosenthal: Well Your Honor is –

Justice Byron R. White: Knowing under Section 10 I suppose, I guess you rely on both 10 and 15 --

Mr. Alan S. Rosenthal: That’s right and --

Justice Byron R. White: With the -- would you suggest that the that criminal liability would be just in this situation?

Mr. Alan S. Rosenthal: Yes where there has been a violation of Section 10 and 15 Criminal Liability would exist.

Justice Byron R. White: Yeah but that doesn’t and but that doesn’t mean that negligence is required at all, is it?

Mr. Alan S. Rosenthal: It would be required--

Justice Byron R. White: Your common law of liability, it depends on negligence I gather?

Mr. Alan S. Rosenthal: That’s correct.

Justice Byron R. White: Statutory liability, your statutory liability argument does depend on --

Mr. Alan S. Rosenthal: Your Honor it, we’ll I’d know actually I think it maybe the -- in terms of a violation of the prohibition in Section 15 that probation is tied in terms to a voluntary or careless sinking.

Justice Byron R. White: Or --

Mr. Alan S. Rosenthal: Or careless, now by voluntary we take it to mean intention, so that for the purposes of section, of that probation in Section 15 there would have to be either --

Justice Byron R. White: You say -- you take it under 10 (2), don't you --

Mr. Alan S. Rosenthal: That’s correct.

Justice Byron R. White: -- that this is an obstruction?

Mr. Alan S. Rosenthal: That’s right.

Justice Byron R. White: And that hasn’t had any voluntary or careless?

Mr. Alan S. Rosenthal: Well Your Honor what would I suppose be involved there is would be the question if the issue arose to whether Section 10 applies to an innocent creation of a obstruction --

Justice Byron R. White: Like sinking in a storm?

Mr. Alan S. Rosenthal: Yes whether the term create would, which is used in Section 10 would keep out of the ambit of Section 10 innocent sinking, it’s not what, it might be argued that one who creates, one whose vessel sinks without any fault at all on the part of the owner has not created an obstruction that the term creation would carry with it the implication it of being either some, of intentional act or some miss or malfeasance.

Justice Byron R. White: It’s almost everything that Section 10 talks about expressly or things that obviously people do on purpose like they build it here or they drop something in a river and things like that.

But do you still think it would cover, Section 10 covers a negligent or innocent.

Mr. Alan S. Rosenthal: I would -- well for the purpose of this case Your Honor we are not arguing that it covers innocent sinking.

We say it very definitely it does cover negligent sinking.

We say beyond question, he who threw his negligence creates an obstruction in the form of a sunken vessel and that’s exactly what we have here in the allegation --

Justice Byron R. White: You would say that that triple liability lies in the situation?

Mr. Alan S. Rosenthal: That’s right although I would say that it’s very unlikely in the case of innocent sinking that criminal liability would be sought.