That fatal and perfidious bark

United States v. Jantran, Inc., No. 13-7060 (10th Cir. Apr. 9, 2015).

The Northern Victor goes through the Ballard locks. (Credit: Ben Wiseley / flickr.)

The Northern Victor goes through the Ballard locks. (Credit: Ben Wiseley / flickr.)

A boat, the Miss Dixie, crashed into a lock on the Verdigris River operated by the Army Corps of Engineers. This crash implicates a section of Rivers and Harbors Act that prohibits anyone from damaging a federal water-control structure. The Act also provides a remedy: Another section of the Act authorizes the federal government to proceed in rem against any vessel that damages a federal water-control structure. 

In rem proceedings, as the Tenth Circuit points out, are a traditional part of admiralty law. When a vessel (or somebody on a vessel) harms somebody else, proceeding against the vessel is often your best bet. The vessel’s owner may be overseas and not be able to be located or sued. Or the owner may be insolvent and the only way you can get any money is to put a lien on the vessel, foreclose on the lien, and sell the vessel. 

Here, however, the government hasn’t proceeded in rem against the Miss Dixie, the offending vessel, but in personam against Jantran, the company that operates the Miss Dixie. Everybody agrees that the Rivers and Harbors Act doesn’t explicitly authorize such a suit. But in a case called Wyandotte Transportation Co. v. United States, the Supreme Court held that the government can proceed in personam to enforce a provision of the Rivers and Harbors Act that prohibits the sinking of a vessel, even though that provision doesn’t explicitly authorize it. The government argues that the same should go for the provision of the Act that prohibits anyone from damaging a federal water-control structure—which, recall, is the provision at issue in this case. 

The Tenth Circuit rejects this argument. The decision in Wyandotte, the court says, was based on the unique “duty-creating” language of the provision prohibiting the sinking of a vessel. There’s no such language in the provision prohibiting someone from damaging a federal water-control structure.

The government’s strongest point is that the Act’s language prohibits “any person or persons” from damaging a water-control structure. How can this provision authorize only in rem actions, the government asks, if its prohibitions apply to “persons” rather than vessels? The Tenth Circuit responds that if a person, rather than a vessel, damages a water-control structure, other legal theories such as “negligence or trespass” may allow the government to proceed in personam against the wrongdoer.