Government claims under Section 408 of Rivers and Harbors Act of 1899 are subject to the Limitation Act of 1851. In re American River Transportation Co., 800 F.3d 428 (8th Cir. 2015). Consequently, vessel owners who have violated Section 408 by damaging public piers, locks, or other harbor facilities of the United States still have the ability to reduce potential damage claims to the value of the vessel and its freight, provided the damage occurred without the vessel owner's privity or knowledge of the causative agent.
The question of whether Section 408 allows the Government to recover more than the value of the vessel and its freight came before the Eight Circuit in In re American River Transportation Co., 800 F.3d 428 (8th Cir. 2015), after four barges being pushed by the M/V Julie White broke loose and damaged a dam and lock on the Mississippi River. Section 408 makes it illegal to damage works built by the U.S. for the preservation and improvement of navigable waters and gives the Government a right to recover its damages from the violator. The vessel owner filed an action under the Limitation Act, seeking to cap its liability for damage to the lock and dam at the value of the vessel and its freight, a question that was not squarely addressed in the Rivers & Harbors Act itself.
In the absence of statutory directive, the Court had to determine whether Congress implicitly repealed the Limitation Act when it enacted Section 408. As Supreme Court precedent directs, for one statute to implicitly repeal another, there must be an irreconcilable difference between the two statutes. The Government marshaled three arguments aimed at establishing irreconcilable conflicts between the Limitation Act and the Rivers & Harbors Act.
First, the Government maintained there is an irreconcilable conflict between the two statutes based on their different scopes of recovery. According to the Government, Section 408 provides an in personam cause of action while the Limitation Act does not. To get to this conclusion, the Government had to first argue that Section 408 provides an in personam cause of action-an issue that is the subject of a Circuit split. The Government wanted the Eighth Circuit to join the Sixth Circuit in recognizing an in personam cause of action. Instead, the Eighth Circuit took the vessel owner's view and joined the Fifth and Tenth Circuits, holding that Section 408 does not provide an in personam cause of action.
The grist of the Circuit split boils down the applicability of the Supreme Court's decision in Wyandotte Trans. Co. v. U.S., 389 U.S. 191 (1967), where the Supreme Court held that another section of the Rivers & Harbors Act-§ 409-provided an implicit in personam cause of action. Section 409 places an affirmative duty on vessel owners to remove sunken vessels. The Supreme Court reasoned that when a vessel owner fails to fulfill this duty and the Government steps in to remove a sunken vessel, the Government is entitled to recover all of its costs. Thus, it can bring an in personam cause of action. A decade later, the Sixth Circuit applied Wyandotte and recognized an in personam cause of action under Section 408.
Since then, the Supreme Court has adopted a stricter standard for implying private causes of actions-one that looks more closely at Congressional intent. Thus, in 2000 when the Fifth Circuit took up this issue, and in 2015 when the Tenth Circuit did the same, these Courts chose not to find an in personam cause of action under Section 408. Both courts reasoned that the logic of Wyandotte did not apply to Section 408 because that section of the statute does not place an affirmative duty on the vessel owner; rather it simply declares certain conduct to be unlawful. Without the hook of a duty, and without any clear indication of contrary Congressional intent, both courts chose not to find an in personam remedy under Section 408. The Eighth Circuit agreed.
The Government's second argument to establish an irreconcilable difference between the Limitation Acts and the Rivers & Harbors Act focused on contrasts between the "privity and knowledge" element of the Limitation Act and the River & Harbors Act's strict liability scheme. The Eighth Circuit found this argument unpersuasive because these two standards address different issues. The River & Harbors Act's strict liability is exactly that-it is a liability standard. In contrast, the "privity and knowledge" element of the Limitation Act serves to exclude vessel owners from its protective cloak only where they have privity or knowledge of the causative agent.
Third, the Government argued that the Limitation Act's six-month timeframe for filing an action and the River & Harbors Act's three-year statute of limitations created an irreconcilable difference between the two statutes. The Eighth Circuit was not convinced because these timeframes have different triggering events. The Limitation Act's six-month timeframe begins to run after receipt of the written claim. In contrast, the statute of limitations for a Rivers & Harbors Act claim begins to run at the time of the incident. Thus, it is possible that a Limitation Act claim could be filed more than three-years after the occurrence. The Court also pointed out that Jones Act claims, which have the three-year statute of limitations, are subject to the Limitation Act as well.
Since the Eighth Circuit found no irreconcilable differences between the Limitation Act and Section 408 of the River & Harbors Act, the Government's damage claim under Section 408 was subject to the Limitation Act. Put simply, even though US Government property protected by Section 408 was damaged, the vessel owner was still entitled to invoke the protection of the Limitation Act. Accordingly, the matter was remanded to the District Court for further proceedings.