The opinion of the court was delivered by: DIMOCK
Cornell Steamboat Company sues the United States for damage to its tug Cornell No. 20 arising from collision with the unmarked wreck Colonel Smith near the Albany Day Line Pier at Kingston, New York. Two actions are brought. One, containing a single claim, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., and another, containing two claims, one under the Suits in Admiralty Act, 46 U.S.C. § 741 et seq., and the other under the Public Vessels Act, 46 U.S.C. § 781 et seq.
At the close of the trial I held that the tug had been negligent in failing to proceed with due caution in an area where those in charge of her knew that the wreck was located. I also held that the government had been negligent in that the Coast Guard Cutter Mariposa, which had had the wreck in tow, left it unmarked in navigable waters of the United States. I stated that I would not direct a decree against the United States under the Suits in Admiralty Act because no merchant ship of the United States was involved but would direct a decree under the Public Vessels Act on the ground of the Mariposa's negligence. I adhere to those statements.
I also stated, however, that I would not direct judgment under the Federal Tort Claims Act. In that I was wrong.
The theory of the claim under the Federal Tort Claims Act was that there had been a breach of statutory duty to mark the wreck. This statutory duty was said to be that imposed by title 33 U.S.C. § 736, 50 Stat. 666, § 4676, as it existed at the time of the accident. That section then read in part:
'Sec. 4676. Whenever the owner of any sunken vessel, boat, watercraft, raft, or other similar obstruction existing on any river, lake, harbor, sound, bay, or canal or other navigable waters of the United States has failed to mark, or in the judgment of the Commissioner of Lighthouses has failed suitably to mark, the same in accordance with the provisions of section 15 of the Act of March 3, 1899 (ch. 425, 30 Stat. 1152), the Commissioner of Lighthouses is authorized to suitably mark the same for the protection of navigation. Until such time as abandonment of any such obstruction has been established in accordance with the provisions of section 19 of the Act of March 3, 1899 (ch. 425, 30 Stat. 1154), the owner thereof shall pay to the Commissioner of Lighthouses the cost of such marking. As soon as abandonment of any such obstruction has been so established, it shall be the duty of the Secretary of War to keep the same so marked pending removal thereof in accordance with the provisions of section 19 of the Act of March 3, 1899 (ch. 425, 30 Stat. 1154), but the Commissioner of Lighthouses may at the request of the Department of War continue the suitable marking of any such obstruction for and on behalf of that Department.'
The critical words are 'it shall be the duty of the Secretary of War to keep the same so marked'. I could not then bring myself to believe that Congress had placed upon the government a mandatory duty to keep suitably marked every thirty day old wreck in navigable waters of the United States. I therefore construed the provision as referring only to wrecks of vessels of which the United States had been owner, distinguishing on that ground Somerset Food Co. v. United States, 4 Cir., 193 F.2d 631, where the Federal Tort Claims Act was applied, and where the offending wreck had been a United States naval vessel. I have since come to the conclusion that there is no basis in the language of the statute or of the Somerset opinion for any such discrimination. In the Somerset case Circuit Judge Dobie said at page 634:
'The initial duty of removing or marking a wrecked ship rests upon the owner until abandonment of the ship. After abandonment, this duty clearly rests on the United States under the Wreck Acts, 33 U.S.C.A. §§ 409, 736, 14 U.S.C.A. § 86, in substitution for the initial activity required of the individual owner. Here, the United States was the original owner of The San Marcos, before its abandonment.'
'We think, too, that the Wreck Acts effectively dispose of the contention that the United States is relieved of liability here because, under § 2680(a) of the (Federal Tort Claims) Act, the Government is not liable for the breach of a discretionary duty and that the Government's duty here to remove or mark the wreck was discretionary. As we read the Wreck Acts, the duty of the United States to mark or remove the wreck is mandatory. The appropriate federal agencies and officers decide merely the proper methods or measures.'
I can see no reason for taking the statement that the government's duty to mark a wreck is mandatory at less than its face value and I agree that the duty is mandatory.
There was, therefore, under title 33 U.S.C. § 736, quoted in part above, a mandatory duty imposed on the government to mark the wreck of the Colonel Smith when it had been legally abandoned. Section 19 of the Act of March 3, 1899, 33 U.S.C. § 414, provides in substance that any such 'obstruction' shall be deemed to have been abandoned after it has existed for thirty days. Thus a mandatory statutory duty on the part of the government to mark the wreck arose, at the very latest, at the expiration of thirty days after its deposit at the Day Line dock.
The question remains whether a right of action arises under the Federal Tort Claims Act to recover damages caused by a breach of that duty.
Numerous cases interpreting the Suits in Admiralty Act and the Public Vessels Act have held that the possession of an admiralty remedy excludes use of all other remedies. I have already held that Cornell has an admiralty remedy for the injury to its tug under the Public Vessels Act, 46 U.S.C. § 781 et seq. The government contends that the existence of this remedy precludes recovery by Cornell under the Federal Tort Claims Act.
The right of action under the Public Vessels Act arises by virtue of the fact that those in charge of the Mariposa, a vessel of the United States, negligently placed the wreck in navigable waters without a mark. There can be no doubt that, if this were the sole ground on which recovery were claimed, the admiralty remedy would be exclusive. However, the claim under the Federal Tort Claims Act for the same recovery is maintained pursuant to an entirely different theory of liability. This claim arises by virtue of the failure of the government, through the Army Engineers, to carry out a mandatory duty to mark every wreck situated as was the wreck of ...