1. Abandonment within the thirty-day period set by the Act of
March 3, 1899, will not be presumed of a wreck left in a
navigable
Page 272 U. S. 676
channel, for the purpose of relieving the owner from the
consequence of failure to remove or mark it as that Act requires.
P.
272 U. S.
686.
2. The leaving of an unmarked wreck in a navigable channel, in a
manner declared by the Act of March 3, 1899, to be unlawful, with
resulting damage to another's vessel, is a maritime tort, which,
when committed by the United States may be civilly remediable under
the Suits in Admiralty Act, although also a crime under the Act of
1899. P.
272 U. S.
687.
3. Under the Suits in Admiralty Act, March 9, 1920, which, in
lieu of earlier permission to proceed
in rem against
government merchant vessels and cargo, permits a libel
in
personam against the United States, with leave to the libelant
to proceed in accordance with the principles of libels
in
rem whenever such a libel might have been maintained if the
merchant vessel or cargo had been privately owned and possessed,
and which provides also that election so to proceed "shall not
preclude the libelant in any proper case from seeking relief in
personam in the same suit," and that the United States shall be
entitled to the benefit of all exemptions and limitations of
liability accorded by law to the owners, charterers, operators, or
agents of vessels, a libel
in personam may be maintained
against the United States to recover for the loss of a vessel and
cargo resulting from the failure of the United States to remove or
mark the wreck of a vessel, which, while owned and used by it as a
merchant vessel, was sunk in a navigable channel. P.
272 U. S.
692.
Reversed.
Appeal from a decree of the District Court which dismissed, for
lack of jurisdiction, an admiralty suit
in personam
brought by the appellant against the United States to recover for a
ship and cargo lost by collision with the sunken and unmarked wreck
of what had been a vessel owned and used by the United States
solely as a merchant vessel. The Seaboard Transportation Company,
originally a co-defendant, was dismissed by consent of the other
parties.
Page 272 U. S. 681
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The Eastern Transportation Company filed a libel in admiralty
in personam against the United States in the
Page 272 U. S. 682
District Court for the Eastern District of Virginia under the
Suits in Admiralty Act of 1920, and against the seaboard
Transportation Company, as joint defendants. It averred that the
libelant, a corporation of the State of Maryland, was the owner of
the barge
Winstead and the bailee of the cargo of the
barge; that the Seaboard Transportation Company owned the tug
Covington and the barge
Pottsville; that, on
August 15, 1920, the steamship
Snug Harbor, owned and used
by the United States solely as a merchant vessel, while on a voyage
from Baltimore, Maryland, to Portland, Maine, came into collision
with a barge
Pottsville in tow of the tug
Covington, was sunk, and became a total loss; that the
wreck of the
Snug Harbor lodged about 4 1/4 miles from
Montauk Point, in a frequented channel way within the harbors and
inland waters of the United States; that it was not marked with a
buoy or beacon by day or a lighted lantern by night, and was not
removed by the United States or the Seaboard Transportation
Company, and that no notice had been given or published advising
mariners navigating the neighboring waters of the presence of the
wreck; that the barge
Winstead, loaded with a full cargo
of coal, on the 14th day of September, 1920, came into contact with
the wreck, and, as a result, was sunk, and it and its cargo became
a total loss, to the damage of the libelant in the sum of $105,000;
that the collision between the
Snug Harbor and the
Pottsville was due to the negligence of both; that the
collision of the
Winstead with the wreck was without
negligence of those engaged in her navigation, but was due to the
unlawful presence of the wreck, for which the respondents were
jointly and severally responsible.
The United States district attorney appeared specially for the
government for the purpose of suggesting to the court that it was
without jurisdiction so far as the United States was concerned;
that the cause of action stated
Page 272 U. S. 683
related to a failure on the part of the officers and agents of
the United States to perform a purely governmental function, or to
the alleged negligence of such officers and agents in the
performance of such a function, and created no liability on the
part of the United States for which it was suable; that the cause
of action in no way concerned a vessel employed as a merchant
vessel; that the Suits in Admiralty Act was to prevent the arrest
and detention of vessels owned or possessed by the United States
then employed as merchant vessels, and it was only to prevent such
arrest and detention and consequent interference with the operation
of such vessels that the United States consented by the Act to be
sued in respect to such vessels, and that the United States had
never consented by the Act or otherwise to be sued in respect to a
wreck or any object incapable of being employed as a merchant
vessel; that the suit
in personam provided for by the Act
was intended by Congress to be only a substitute for a suit
in
rem against such vessel itself, and by the terms of the Act
could be brought and maintained only in cases where, if such vessel
were privately owned, a suit
in rem could be maintained
against her at the time of the commencement of such action, and not
then unless such vessel was employed as a merchant vessel at that
time; that § 15 of the Act of March 3, 1899, making it the duty of
the owner of any vessel or craft wrecked and sunk in a navigable
channel immediately to mark it with a buoy or beacon by day and a
lighted lantern at night, had no application to the United States
of America, imposed no duty upon it, and created no liability for
which it was suable in the district court below or elsewhere.
This issue on jurisdiction was presented by a motion to dismiss,
which was denied by the district judge on the ground that the
question should be determined after the facts were elicited in the
trial of the case. 283 F. 1015. Subsequently, the judge reheard the
suggestion of want of
Page 272 U. S. 684
jurisdiction, and reached the conclusion on the facts alleged
that the court was without jurisdiction, and dismissed the
libel.
The record shows that, by consent of the other parties, the
Seaboard Transportation Company has been dismissed for reasons
appearing to the court and to counsel. It further appears that all
questions of mere venue are waived.
This appeal, upon a certificate of the district judge that the
dismissal had been solely for lack of jurisdiction, was brought
directly to this Court on March 20, 1925, under § 238 of the
Judicial Code as it was before it was amended by the Act of
February 13, 1925, in accordance with § 14 of that Act, 43 Stat.
936, c. 229.
The case before us turns on the proper construction of the Suits
in Admiralty Act. It was passed March 9, 1920, c. 95, 41 Stat. at
Large 525. Its first section provides that no vessel owned by the
United States or by any corporation in which the United States or
its representatives owns the entire outstanding capital stock shall
thereafter "in view of the provision herein made for libel
in
personam be subject to arrest or seizure by judicial process
in the United States or its possessions."
By § 2, in cases where, if such vessel were privately owned or
operated, or if such cargo were privately owned and possessed, a
proceeding in admiralty could be maintained at the time of the
commencement of the Action, a libel
in personam may be
brought against the United States if the vessel is employed as a
merchant vessel. The suit is to be in a district court of the
United States for the district in which the parties suing reside,
or at their principal place of business or in which the vessel or
cargo charged with liability is found. The libelant is forthwith to
serve a copy of his libel on the United States attorney for such
district and mail a copy thereof to the Attorney General, and make
a sworn return of such service and
Page 272 U. S. 685
mailing to constitute valid service on the United States and the
corporation.
The third section provides that the suits shall proceed and be
heard according to principles of law and to the rules of practice
obtaining in like cases between private parties. A decree against
the United States or such corporation may include costs of suit,
and when the decree is for a money judgment, it shall include
interest at the rate of 4 percent per annum until satisfied, or at
any higher rate which shall be stipulated in any contract upon
which such decree shall be based. Interest is to run as ordered by
the court. The decrees are subject to appeal and revision as now
provided in other cases of admiralty and maritime jurisdiction.
Then follows this language:
"If the libelant so elects in his libel, the suit may proceed in
accordance with the principles of libels
in rem wherever
it shall appear that, had the vessel or cargo been privately owned
and possessed, a libel
in rem might have been maintained.
Election so to proceed shall not preclude the libelant in any
proper case from seeking relief
in personam in the same
suit."
The United States is exempted from giving any bond, but it
assumes liability to satisfy and decree in any cause in which a
vessel of the United States has been arrested or in which a vessel
previously possessed, owned or operated by the United States has
been arrested in which the United States is interested and of which
it desires release as suggested by the Attorney General.
Section 6 directs that the United States shall be entitled to
the benefits of all exemptions and of all limitations of liability
accorded by law to the owners, charterers, operators, or agents of
vessels.
Section 7 provides that, if any vessel or cargo of the United
States is seized by process of a court of any country other than
the United States, the Secretary of
Page 272 U. S. 686
State of the United States may, in his discretion upon the
request of the Attorney General, direct the proper United States
consul to claim immunity from such suit and seizure and to execute
a bond on behalf of the United States as the court may require for
the release of the vessel or cargo.
Section 8 appropriates the sums needed to meet the final
judgments against the United States authorized by the sections of
the Act.
In view of the fact that the wreck which did the damage was a
total loss, we assume that there is no
res upon which a
recovery
in rem could be based, and therefore that a suit
as between private persons, if maintainable, must rest on the
personal liability of the owner of the wreck, and must be, in
principle,
in personam, as distinguished from an action
in rem against the vessel wrecked. Hence it is that the
libelant must establish that, under the Suits in Admiralty Act, it
was intended to give an action against the United States both in
cases where the owner of the vessel would be personally liable and
in those where only the vessel would be liable.
The sovereignty of the United States raises a presumption
against its suability, unless it is clearly shown; nor should a
court enlarge its liability to suit conferred beyond what the
language requires. It was this view which led us, in
Blamberg
Bros. v. United States, 260 U. S. 452, to
hold that, as the substitution by the Suits in Admiralty Act was
merely to furnish a balancing consideration for the immunity of the
United States from seizure of its vessels employed as merchant
vessels previously permitted, the Act did not apply in cases in
which the seizure of a merchant vessel of the United States could
not be prevented by the Act in a foreign port and court, where the
immunity declared by Congress could not be given effect.
In the case at bar, the liability charged in this libel arose
from occurrences under the Act of March 3, 1899,
Page 272 U. S. 687
c. 425, 30 Stat. 1121, 1152, § 15. The Act is one making
appropriations for the construction, repair and preservation of
certain public works and rivers and harbors, and contains
regulations for the establishment of harbor lines and for the
removal of obstructions in navigable waters of the United
States.
Its § 15 provides, among other things, that, whenever a vessel,
raft, or other craft is wrecked and sunk in a navigable channel, it
shall be the duty of the owner of such sunken craft immediately to
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; that the neglect or failure of the said owner
so to do shall be unlawful; that 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 construed as an abandonment of such craft and subject the same
to removal by the United States as thereinafter provided.
Section 16 provides for penalties of fine or imprisonment for
the violation of § 15 as for a misdemeanor, or by both, and
provides that the wrecked vessel may be proceeded against summarily
by way of libel in any district court in the United States having
jurisdiction.
Section 19 provides for a period of 30 days before abandonment
is complete unless legally established in less time. Under the
averments of the libel, there is no presumption of abandonment,
certainly not within the 30 days, merely to relieve the owner of
the wreck of his affirmative duty during that time to protect
commerce against its danger.
People's Coal Co. v. Second Pool
Coal Co., 181 F. 609,
aff'd, 188 F. 892. We do not
think that abandonment is a factor in this case.
It is first objected to the recovery here that it was not
intended by the Suits in Admiralty Act to subject the United States
itself to prosecution for a crime which it
Page 272 U. S. 688
denounces in its legislation. We need not be troubled by this
objection, because there is no attempt here to prosecute the United
States or any of its agents criminally. The declaration that the
leaving of a wreck in a navigable channel in a place dangerous to
passing steamers without notice of the danger and without immediate
removal is unlawful makes such omission a maritime tort which, if
merchant vessels of the United States are to respond in tort, may
be recovered for in its admiralty courts against the United States
without anomaly.
The Fahy, 153 F. 866;
The Macy,
170 F. 930;
People's Coal Co., 181 F. 609; 188 F. 893.
Under the Tucker Act and the general jurisdiction of the Court of
Claims, of course, the United States is made liable only upon a
contract express or implied, and not for a tort; but its liability
provided for in the Suits in Admiralty Act cannot be limited to
contracts any more than the liability of its merchant vessels under
the Shipping Act of 1916 could be so limited.
The Lake
Monroe, 250 U. S. 246.
By the Shipping Act of 1916, approved September 7, 1916, c. 145,
39 Stat. 729, the United States Shipping Board was established for
the purpose of encouraging, developing, and creating a naval
auxiliary and naval reserve and a merchant marine to meet the
requirements of the commerce of the United States, and authority
was given to that board to purchase, lease, or charter vessels
suitable, as far as the commercial requirements of trade of the
United States might permit. By § 9, any such vessel, while employed
solely as a merchant vessel, was made subject to all laws,
regulations, and liabilities governing merchant vessels when the
United States was interested therein as owner in whole or in part,
or otherwise. It was under this provision that vessels belonging to
the United States engaged as merchant vessels were arrested and
held in an action
in rem. In
The Lake Monroe,
250 U. S. 246, we
decided that such a merchant vessel was subject
Page 272 U. S. 689
to judicial process in admiralty for the consequences of a
collision. It would seem clearly to follow that, under the Act of
1916, if a wreck of a merchant vessel of the United States in a
navigable channel, not properly protected, caused damage to a
vessel navigating the channel, the owner of the latter would have a
remedy
in rem against the wreck. Had the Suits in
Admiralty Act not been passed, and had the wreck become a total
loss, there is nothing in the previous legislation, in the Act of
1916 or elsewhere, by which the government could be made generally
liable like a private owner for damages for failure to protect
vessels against the wreck under the Act of 1899.
Did the Suits in Admiralty Act intend to extend and expand the
in rem liability so as to make the United States so
generally liable?
As we have already intimated, the main purpose of the Act of
relieving United States merchant vessels from seizure and arrest
would lead us to limit the operation of the Act to such a remedy as
would be commensurate only with the immunity from seizure extended
by the Act to United States merchant vessels and to a proceeding
which while in form
in personam would be attended only
with the incidents of a proceeding
in rem as if against a
vessel libeled, arrested, and released under a stipulation or bond
by the United States to pay all damages. In spite of the purpose of
the Act to create a substitute for a suit
in rem, however,
we are forced to the view, by the language used in §§ 3 and 6, that
it must be construed to have a wider effect than that which its § 1
would lead us to expect. The second section declares that, in cases
of immunity from arrest provided for in the first section, where,
if the vessel or cargo had been privately owned or possessed, a
proceeding in admiralty could be maintained at the commencement of
the Action, a libel
in personam may be brought against the
United
Page 272 U. S. 690
States. The expression "a proceeding in admiralty" is broad
enough to cover both a libel
in personam and a libel
in rem; but, if that were all, we could properly limit its
scope, purpose, and incidents to that of a suit
in rem
merely transmuted into the form of an action
in personam.
The third section, however, provides that, if the libelant so
elects in his libel, the suit may proceed in accordance with the
principles of libels
in rem wherever it shall appear that,
had the vessel or cargo been privately owned or possessed, a libel
in rem might have been maintained, but it then proceeds to
say, "[b]ut election so to proceed shall not preclude the libelant
in any proper case from seeking relief
in personam in the
same suit." It is impossible to reconcile this language with the
idea that the action provided for is one which in form only is
in personam against the United States, but which in fact
is one having the limitations, operation, and result of a suit
in rem. The words certainly assume that there may be
proper cases under the Act in which there is to be a remedy really
in personam against the United States, and also one in
substance
in rem against its vessels, for which its own
personal liability is substituted. We have heard no suggestion or
hypothesis which satisfies the provision for this double remedy
thus expressly given, which would not include the general
in
personam liability of the United States as the owner of an
offending vessel like that of a private owner.
This view is further borne out by the sixth section, which
provides that the United States shall be entitled to the benefit of
all exemptions and of all limitations of liability accorded by law
to the owners, charterers, operators, or agents of vessels. The
necessary implication is that if, under the Harter Act (c. 105, 27
Stat. 445), or the Limitation of Liability Act (§§ 4282-4287,
R.S.), the United States as owner of a merchant vessel should not
be able to show performance of the conditions upon
Page 272 U. S. 691
which such statutory limitations of liability are granted, it
must assume the personal liability for negligence in such cases
exactly as a private owner would.
This construction of §§ 2, 3, and 6 is sustained by the weight
of authority in the lower courts.
Agros Corp. v. United
States, 8 F.2d 84;
The Anna E. Morse, 287 F. 364;
Bashinsky Cotton Co. v. United States, 8 F.2d 79;
Markle v. United States, 8 F.2d 87;
Cross v. United
States, 8 F.2d 86; Benedict on Admiralty (5th ed.) vol. 1, §
194.
Do
Blamberg v. United States, 260 U.
S. 452,
Shewan & Sons v. United States,
266 U. S. 108, and
Nahmeh v. United States, 267 U. S. 122,
militate against this view? In those cases, the Court emphasized
the main purpose in the Act to be to rid the United States of the
inconvenience to which it and its subordinate Shipping Corporations
were subjected by having their vessels in the merchant trade
arrested and seized under the Shipping Act of 1916, by substituting
therefor a suit
in personam against the United States with
consequent appropriations to meet the liability thus imposed. We
did not then have before us the question whether the statute
substituted a remedy limited to what an action
in rem
would be with a statutory stipulation and bond of the United States
to take the place of the vessel, or whether it created a broader
personal obligation of the United States, both personal and
in
rem, like that of the private owner of a vessel. The question
in the
Blamberg case was whether the Act applied at all in
cases in which there could be no immunity granted by Congress to
vessels of the United States. The
Shewan case only
involved the question whether that which had been a merchant vessel
of the United States continued to be such and satisfied the Act, if
it were laid up and had not been changed to be a public vessel of
the United States. The
Nahmeh case was one of venue as to
the district courts in which
Page 272 U. S. 692
suits could be brought under the Act -- that is, whether only
one of three courts described in the Act, or any one of the three,
could be used in each instance. Neither case involved the important
question now before us, and while the emphasis placed in those
cases upon the main purpose of the Act as that of the mere
substitution of a remedy for a proceeding
in rem against
merchant vessels of the United States and its effect on its
interpretation may have been too marked, there is nothing in their
decision inconsistent with the conclusion which we have here
reached.
It is finally insisted for the government that recovery against
the government under the Suits in Admiralty Act, whether
in
personam or
in rem, must be on a cause of action
related to or growing out of the operation of government vessels
employed as merchant vessels, and that, as the collision with the
wreck was not with a vessel employed as a merchant vessel, the Act
does not apply. We think this reasoning to be too fine. What the
statute means by saying "employed as a merchant vessel" is that the
vessel shall belong to that class, as distinguished from one
employed in the governmental service, not necessarily that it shall
be actively thus employed at the time of the collision.
Shewan
& Sons v. United States, supra. The cause of action grows
out of the responsibility of the government for a merchant vessel
which in the course of its employment had become a danger to
navigation and which imposed a duty to avoid that danger. A wreck
which is a total loss will not furnish basis for an action
in
rem, as we have assumed, but if a proceeding in admiralty
permitted by the Act embraces the principles both of suits
in
personam and suits
in rem, it is a most natural
construction of the Act dealing with merchant vessels employed by
the United States, to include as a suit
in personam it
permits, one for a tort caused by the negligence of the United
Page 272 U. S. 693
States in dealing with a wreck of its merchant vessel and its
failure to comply with its own navigation laws therewith.
The judgment of the district court is reversed and the cause
remanded for further proceedings.