REVISED - December 18, 2000
UNITED STATES COURT OF
For the Fifth Circuit
BARNACLE MARINE MANAGEMENT,
INCORPORATED; INGRAM BARGE COMPANY,
UNITED STATES OF AMERICA,
Appeals from the United
States District Court
for the Western District
December 1, 2000
DAVIS and BARKSDALE, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Barnacle Marine Management, Inc.
("Barnacle") and Ingram Barge Company ("Ingram")
appeal the district court's order dismissing the United States
from consolidated limitation proceedings under 46 U.S.C. §
183 of the Limitation of Shipowners' Liability Act of 1851 ("Limitation
Act"). The district court held that 33 U.S.C. § 408
of the Rivers and Harbors Act of 1899 ("Rivers and Harbors
Act") provides the United States with an in personam
remedy against the owner of a vessel that damages a public work.
The district court also held that this remedy is not subject
to the Limitation Act, thus allowing the United States to proceed
against Barnacle and Ingram in separate litigation free from
limitation. For the reasons that follow, we reverse.
In March 1997, the MISS TONI, a
tow boat owned and operated by Barnacle, was pushing a tow of
four of Ingram's barges on the Ouachita River when it caused
one of the barges to allide with the Columbia Lock and Dam, a
public work owned by the United States. The tow then broke up
and one of the barges broke away and struck the trunnion arm
of a Columbia Lock gate, causing damage to the gate that cost
$1,247,200 to repair.
In 1997, Barnacle and Ingram each
filed separate complaints under the Limitation Act(2)
seeking exoneration from and/or limitation of liability for damages
caused by the March 1997 allision. The district court issued
separate orders that enjoined all other pending actions against
Barnacle and Ingram and established deadlines for filing claims.
The United States timely filed claims
against both Barnacle and Ingram. These claims sought damages
for negligence under the general maritime law, and also sought
damages under Sections 14 and 16 of the Rivers and Harbors Act
(current version at 33 U.S.C. §§ 408 and 412). The
district court then consolidated the two limitation proceedings.
The United States moved to dismiss
its claims under 33 U.S.C. §§ 408 and 412 from the
consolidated limitation proceeding so that it could proceed against
Barnacle and Ingram to recover its full damages. The district
court granted this motion. In its memorandum opinion, the district
court held that 33 U.S.C. § 408 of the Rivers and Harbors
Act provides the United States with an in personam remedy
against the owner of a vessel that damages a public work. The
district court held that the United States' in personam
claims under 33 U.S.C. §§ 408 and 412 are not subject
to the Limitation Act, and that it could proceed against the
two vessel owners for its full damages outside the consolidated
limitation proceeding. This appeal followed.
The parties first disagree about
whether 33 U.S.C. §§ 408 and 412 provide the United
States with an in personam remedy against Barnacle and
Ingram for damage to its public works, in this case a gate to
a lock. The United States concedes that if the only remedy this
statute provides is an in rem one against the offending
vessel, then a determination of whether the Limitation Act applies
has no practical effect in this case. In either event, the United
States' recovery would be limited to the value of the vessel.
So we turn to the critical issue in this appeal: whether 33 U.S.C.
§§ 408 and 412 create an implied in personam
remedy for the United States against the owner of a vessel that
damages a public work.
Section 408 makes it unlawful for
any person to damage or otherwise interfere with a public work
built by the United States to aid navigation or prevent floods.(3) The remedies Congress expressly provided
for violations of 33 U.S.C. §§ 408 and 409 are found
in 33 U.S.C. §§ 411 and 412, which are also part of
the Rivers and Harbors Act. Section 411 provides for criminal
fines and imprisonment for violations of § 408. Section
412 provides, in pertinent part:
And any boat, vessel, scow, raft,
or other craft used or employed in violating any of the provisions
of sections 407, 408, 409, 414, and 415 of this title shall be
liable . . . for the amount of damages done by said boat . .
., and said boat . . . may be proceeded against summarily
by way of libel in any district court of the United States having
33 U.S.C. § 412 (emphasis added).
By its express terms, therefore, § 412 provides only an
in rem remedy against the vessel for violations of §
408. All parties agree that § 412 does not expressly provide
an in personam remedy for violations of § 408.
The United States argues that a
companion section of the Rivers and Harbors Act, 33 U.S.C. §
409, along with judicial decisions allowing the United States
to maintain an in personam action under § 409, should
apply by analogy to this case. This argument requires us to examine
§ 409 and the decisions under § 409. Section 409 makes
it unlawful for a vessel owner, operator, or lessor to sink or
cause any vessel to be sunk in a navigable channel.(4)
The owner, operator, or lessor has a duty under § 409 to
immediately remove such a wreck. Criminal sanctions for violations
of § 409 are provided by § 411, including both fines
and imprisonment.(5) Civil remedies
for violations of § 409 (as well as § 408) are provided
by § 412. As discussed above, this gives the United States
an in rem remedy against the offending vessel.
The United States, relying on Wyandotte
Transp. Co. v. United States, 389 U.S. 191 (1967), argues
that we should imply an in personam remedy in favor of
the United States and against the vessel owners in this case.
In Wyandotte, the Supreme Court interpreted § 409
to include an implied in personam remedy in favor of the
United States against the owner of a negligently(6)
sunk vessel for expenses incurred in removing that vessel. The
United States argues that the Court's reasoning in Wyandotte
should lead us to conclude that an in personam remedy
also exists for violations of § 408.
In Wyandotte, the Court considered
two consolidated cases.(7) In
the first case, the United States sought a declaratory judgment,
declaring negligent parties who sank a vessel in an inland waterway
responsible for "removing the impediment to navigation thus
created." Wyandotte, 389 U.S. at 193. In the other
consolidated case, the United States had itself removed a sunken
vessel that it claimed had been negligently sunk. It sought in
personam reimbursement for the costs of this removal under
The issue in Wyandotte was
whether the United States could obtain either a declaratory judgment
or an in personam judgment from a negligent shipowner
which had sunk its vessel in violation of § 409. The Court
held that both remedies were available to the United States:
The Government may, in our view,
seek an order that a negligent party is responsible for rectifying
the wrong done to maritime commerce by a § 15 [33 U.S.C.
§ 409] violation. Denial of such a remedy to the United
States would permit the result, extraordinary in our jurisprudence,
of a wrongdoer shifting responsibility for the consequences of
his negligence onto his victim. It might in some cases permit
the negligent party to benefit from commission of a criminal
act. We do not believe that Congress intended to withhold from
the Government a remedy that ensures the full effectiveness of
the [Rivers and Harbors] Act. We think we correctly divine the
congressional intent in inferring the availability of that remedy
from the prohibition of § 15. It is but a small step
from declaratory relief to a civil action for the Government's
expenses incurred in removing a negligently sunk vessel.
Having properly chosen to remove such a vessel, the United States
should not lose the right to place responsibility for removal
upon those who negligently sank the vessel. . . . [R]apid removal
by someone was essential. Wyandotte was unwilling to effectuate
removal itself. It would be surprising if Congress intended
that, in such a situation, the Government's commendable performance
of Wyandotte's duty must be at Government expense.
at 204-05 (emphasis added) (footnote omitted) (citations
The United States gives two reasons
why Wyandotte, which interpreted § 409, should control
today's case brought under § 408. First, the United States
argues that § 408 and § 409 are similar provisions
forming a part of the Rivers and Harbors Act, and that therefore
Wyandotte's reasoning should apply to cases brought under
both § 408 and § 409. According to the United States,
because Wyandotte rejected the vessel owner's claim that
the exclusive civil remedy for violations of § 409 was the
in rem remedy expressly provided in § 412, we should
follow Wyandotte and imply an in personam civil
remedy for violations of § 408.
Second, the United States argues
that Wyandotte requires us to give § 408 an expansive
interpretation. In Wyandotte, the Court stated that "[d]espite
some difficulties with the wording of the [Rivers and Harbors]
Act, we have consistently found its coverage to be broad. And
we have found that a principal beneficiary of the Act, if not
the principal beneficiary, is the Government itself." Id.
at 201 (citations omitted).
Barnacle and Ingram argue that we
should not go beyond the plain language of the Rivers and Harbors
Act to determine what remedies are available for violations of
33 U.S.C. § 408. They point out that § 411 provides
criminal penalties for violations of § 408, and § 412
provides an in rem remedy for violations of § 408.
They argue that these remedies are the only remedies Congress
provided and we should not imply an in personam civil
Barnacle and Ingram also contend
that Wyandotte does not support the implication of an
in personam remedy for claims brought under § 408.
Critically, Wyandotte was interpreting § 409 of the
Rivers and Harbors Act, not § 408, the provision at issue
in this case. They contend that § 408 and § 409 are
very different statutes that prohibit different types of conduct
and impose different duties on violators.
Section 409 imposes a duty on the
owner, operator, or lessee of a vessel sunk in a navigable channel
to mark and remove the vessel. Section 408 makes it illegal for
any person to damage or impair a public work used in aid of navigation,
but it does not impose a duty upon any person to repair the public
work. From these differences in the duty imposed on a shipowner
under the two statutes, Barnacle and Ingram argue that Congress
intended different remedies to flow to the United States under
§ 408 and § 409. More specifically, Barnacle and Ingram
contend that the terms of § 409 led the Wyandotte
Court to conclude that the United States could obtain a declaratory
judgment declaring the vessel owner responsible for removing
the sunken vessel.(8) Section
408 has no similar language that would permit the United States
to obtain a declaratory order under § 408 declaring that
the person who damaged a public work is responsible for repairing
We agree with Barnacle and Ingram
that we should not imply an in personam remedy in favor
of the United States against the offending shipowner. First,
the plain language of § 408, § 411, and § 412
does not give the United States a civil in personam remedy
against a violator of § 408.(9)
Second, Wyandotte does not control this § 408 case
because the Wyandotte Court expressly relied on language
peculiar to § 409 in implying an in personam remedy
in favor of the United States against the vessel owner. The Court
observed that § 409 created a duty on the owner of the sunken
vessel to remove it. 389 U.S. at 206-07. This duty triggered
the right of the United States to a declaratory judgment directing
the vessel owner to remove the wreck. The Court stated that "[i]t
is but a small step from declaratory relief to a civil action
for the Government's expenses incurred in removing a negligently
sunk vessel." Wyandotte, 389 U.S. at 204 (citing
United States v. Perma Paving Co., 332 F.2d 754 (2nd
Because § 408 does not give
the United States the right to a declaratory order requiring
the person responsible for damaging or impairing a public work
to repair the work, Wyandotte's reasons for implying an
in personam remedy under § 409 do not apply in this
§ 408 case. Our decision is consistent with a number of
recent Supreme Court decisions holding that we should be reluctant
to imply a remedy broader than Congress expressly provided. See
e.g., Touche Ross & Co. v. Redington, 442 U.S.
560, 99 S.Ct. 2479 (1979), California v. Sierra Club,
451 U.S. 287, 101 S.Ct. 1775 (1981), Karahalios v. National
Fed'n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282 (1989).
We realize this decision declining
to imply an in personam remedy under § 408 puts us
in conflict with the Sixth Circuit's decision in Hines, Inc.
v. United States, 551 F.2d 717 (6th Cir. 1977).
In Hines, the Sixth Circuit, with very little analysis,
held that Wyandotte controlled. Seeid. at 720-23.
For the reasons stated above, we respectfully disagree.
For the above reasons, the orders
of the district court dismissing the United States from Barnacle
and Ingram's limitation proceedings are reversed and the case
is remanded for further proceedings.
REVERSED AND REMANDED.
1. Circuit Judge
of the Seventh Circuit, sitting by designation.
2. 46 U.S.C.
3. Section 408
provides, in pertinent part, that: "[i]t shall not be lawful
for any person or persons to . . . injure, . . . or in any manner
whatever impair the usefulness of any . . . dike, levee, . .
. or other work built by the United States . . . for the preservation
and improvement of any of its navigable waters or to prevent
floods . . . ."
4. Courts and
commentators commonly refer to 33 U.S.C. § 409 as part of
the Wreck Act. Section 409 provides, in pertinent part, that:
It shall not be lawful . . . to
sink, or permit or cause to be sunk, vessels or other craft in
navigable channels . . . . And whenever a vessel, raft, or other
craft is wrecked and sunk in a navigable channel . . . it shall
be the duty of the owner, lessee, or operator 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 . . . .
5. Section 411
provides, in pertinent part, that:
Every person and every corporation
that shall violate, or that shall knowingly aid, abet, authorize,
or instigate a violation of the provisions of sections 407, 408,
409, 414, and 415 of this title shall be guilty of a misdemeanor,
and on conviction thereof shall be punished by a fine of up to
$25,000 per day, or by imprisonment (in the case of a natural
person) for not less than thirty days nor more than one year,
or by both such fine and imprisonment . . . .
6. In 1986, nineteen
years after Wyandotte, Congress changed § 409's standard
for liability from negligence to strict liability. The section
was amended in 1986 by substituting the words "or to sink"
for "or to voluntarily or carelessly sink". Also, in
addition to owners, the amendment made lessees and operators
potential defendants under § 409. Pub.L. 99-662, Title IX,
§ 939(a), 100 Stat. 4199.
States v. Cargill, Inc., and United States v. Wyandotte
Transp. Co. were consolidated under the heading United
States v. Cargill, Inc. in both the district court (see
1964 A.M.C. 1742), and the appellate court (see 367 F.2d
971 (5th Cir. 1966)). On appeal to the Supreme Court,
the case came under the Wyandotte heading.
shall be the duty of the owner, lessee, or operator of such sunken
craft to commence the immediate removal of the same, and prosecute
such removal diligently . . . ." 33 U.S.C. § 409.
starting point in every case involving construction of a statute
is the language itself." Blue Chip Stamps v. Manor Drug
Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d
539 (1975) (POWELL, J., concurring). "When that language
is plain we must abide by it; we may depart from its meaning
only to avoid a result 'so bizarre that Congress could not have
intended it.'" Uniroyal Chemical Co., Inc. v. Deltech
Corp. 160 F.3d 238, 244 (5th Cir. 1998) (quoting
Demarest v. Manspeaker, 498 U.S. 184, 191, 111 S.Ct. 599,
112 L.Ed.2d 608 (1991) (quotation omitted)).