                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 9, 2015
                                      PUBLISH                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellant,
       v.                                               No. 13-7060
 JANTRAN, INC.,

             Defendant - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE EASTERN DISTRICT OF OKLAHOMA
                  (D.C. NO. 6:11-CV-00250-RAW)


Steve Frank, Appellate Staff (Stuart F. Delery, Principal Assistant Attorney
General, Mark F. Green, United States Attorney, and Leonard Schaitman,
Appellate Staff, with him on the briefs), United States Department of Justice,
Washington, DC, for Appellant.

Philip S. Brooks, Jr. (Ronald J. Kitto with him on the brief), Montgomery Barnett,
L.L.P., New Orleans, LA, for Appellee.


Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges.


TYMKOVICH, Circuit Judge.


      The Miss Dixie is a cargo line boat operated by Jantran, a company

involved in maritime transportation on the Verdigris River in Oklahoma. While
operating on the river, the Miss Dixie struck and extensively damaged a lock

maintained by the Army Corps of Engineers. After repairing the lock, the Corps

sued Jantran for the costs of repair.

      One would think such a suit would be a routine matter, but because of the

federal maritime legal regime at play, we are required to revisit basic principles

of civil procedure involving in personam and in rem jurisdiction. For purposes of

this case, if federal law allows an in personam action against Jantran as ship

owner and operator, the company will be personally liable for all of the Corps’s

damages in repairing the lock. But if federal law only allows an in rem action

against the damage-causing vessel, the Corps would be limited to seeking

damages capped at the value of the Miss Dixie.

      The district court dismissed the Corps’s suit, concluding that federal law

does not allow the Corps to seek in personam damages directly from the owners

of a vessel that damages a structure on navigable waters. As the court found, the

applicable statute, the Rivers and Harbors Act, 33 U.S.C. §§ 401–27, only allows

in rem claims against the vessel that caused the damage—here the Miss Dixie.

      We agree with the district court that the Act does not authorize in personam

actions against the owners of the vessel. The Act only allows the Corps to

proceed in rem against the vessel itself. We therefore AFFIRM.




                                         -2-
                                    I. Analysis

      While carrying cargo, the Miss Dixie lost power, struck, and damaged a

lock operated by the Army Corps of Engineers. The United States then

commenced in district court an in personam civil action against Jantran under

§ 408 of the Rivers and Harbors Act.

      The Rivers and Harbors Act was enacted in 1899, and in large part is

designed to establish a national legal framework that would help regulate harm to

the nation’s waterways. Wyandotte Transportation Co. v. United States, 389 U.S.

191, 201 (1967). To this end, the Act prohibits conduct that might damage or

obstruct river structures like dams, locks, or levees. In particular, § 408 makes it

unlawful for any person to damage a federal water-control structure, stating that:

      It shall not be lawful for any person or persons to . . . alter, deface,
      destroy, move, injure, obstruct by fastening vessels thereto or
      otherwise, or in any manner whatever impair the usefulness of any
      seawall, bulkhead, jetty, dike, levy, wharf, pier or other work built
      by the United States, in whole or in part, for the preservation and
      improvement of any of its navigable waters or to prevent floods . . . .


33 U.S.C. § 408. A related provision, § 409, establishes that it “shall not be

lawful . . . to sink, or permit or cause to be sunk, vessels or other craft in

navigable channels.” Id. § 409. Section 409 further provides that, in the event of

a violation, “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.” Id. (emphasis added).

                                          -3-
      Nothing in the Rivers and Harbors Act, however, expressly authorizes the

government to bring an action against a ship owner or operator to enforce these

provisions. Rather, the Act provides two kinds of remedies for violations of

§ 408. First, § 411 authorizes criminal fines and penalties for “[e]very 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.” 1 Id. § 411.

      Second, § 412 provides that the government may proceed in rem against

any vessel used to violate the Rivers and Harbors Act:

      [A]ny 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 pecuniary penalties specified in section 411 of this
      title, and in addition thereto for the amount of the damages done by said
      boat, vessel, scow, raft, or other craft, which latter sum shall be placed to
      the credit of the appropriation for the improvement of the harbor or
      waterway in which the damage occurred, and said boat, vessel, scow, raft,
      or other craft may be proceeded against summarily by way of libel in any
      district court of the United States having jurisdiction thereof.




      1
         In larger part, “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 . . . .” 33 U.S.C. § 411.

                                             -4-
Id. § 412. In sum, § 408 prohibits damaging or obstructing a federal water-

control structure, while sections 411 and 412 provide criminal and civil in rem

actions, respectively.

      Nonetheless, the Corps argues that § 408 should be read to also authorize in

personam actions. Although it concedes that the text of § 408 does not expressly

establish an in personam remedy, the Corps contends the Supreme Court has

already construed the similarly worded § 409 as allowing precisely that type of

relief. Section 409 of the Act states that, “It shall not be lawful to . . . sink or

permit or cause to be sunk, vessels or other craft in navigable waters.” Id. § 409.

Despite the lack of any reference in the statute to in personam relief, the Supreme

Court held in Wyandotte that § 409 impliedly authorizes a personal right of action

against ship owners to further a purpose of full compensation for maritime

damages. See 389 U.S. 191. The Corps argues that without an implied personal

right of action, § 408, like § 409, is inadequate to fully compensate the United

States for its losses. As a matter of consistency, the Corps contends § 408 must

therefore contain an implied right to in personam relief for the same reasons.

      We disagree, but our analysis first requires a brief detour through basic

civil procedure. The differences between in rem and in personam actions have a

number of practical consequences. First, in contrast to a traditional in personam




                                          -5-
action where the defendant is typically a person or business, 2 the defendant in an

in rem action under the Act is the vessel itself. 3 This follows from traditional

maritime law, where a party injured by a maritime vessel automatically obtains a

lien on that vessel at the time of the accident. 2 Benedict on Admiralty § 21 (7th

ed. 1987) (“The principle is that one . . . who, through the instrumentality of the

ship, has suffered a wrong that is within the maritime jurisdiction, shall have by

way of security or redress, an enforceable interest in the ship.”). Under maritime

law, after the creation of the lien the injured party can then bring an in rem action

against the vessel itself and foreclose its lien if successful in the action. Id. This

process highlights the second unique feature of in rem actions: in rem recoveries

are necessarily limited to the value of the vessel itself.

      Why would the statute express a preference for in rem actions? Although

perhaps unusual for inland torts, the Act’s apparent preference for in rem over in

personam proceedings is in line with the principles and practices of maritime

law. Maritime law has long recognized that “a ship is, of necessity, a wanderer,”

which “visits shores where her owners are neither known nor accessible.” 2

Benedict on Admiralty § 21. Accidents happen, and with maritime vessels



      2
        “(Of a legal action) brought against a person rather than property.”
Black’s Law Dictionary 862 (9th ed. 2009).
      3
        “Involving or determining the status of a thing, and therefore the rights of
persons generally with respect to that thing.” Black’s Law Dictionary 862 (9th ed.
2009).

                                          -6-
accidents often happen far from home. Frequently the negligent party will be a

ship captain of insufficient means to satisfy a judgment, and the responsible ship

owner may be a foreign entity difficult to sue and unlikely to satisfy a judgment.

Thus, maritime law historically recognized an aggrieved party might find his

“best and surest pledge for . . . compensation and indemnity” in the ship itself

and, as a result, traditional maritime law grants an injured party a lien in the

vessel that caused his injury. Id. §§ 21–22. The injured party can then foreclose

his lien and receive compensation by filing an in rem action against the ship

itself. Id. § 21. 4

       In another case, our finding that § 408 expressly provides an in rem action

might be the end of the story. But the Supreme Court complicated the analysis in

Wyandotte.

       Despite a lack of an express in personam remedy in the Rivers and

Harbors Act, the Supreme Court found in Wyandotte that the Act impliedly

authorizes injunctive relief and in personam damages actions for violations of §

409. 389 U.S. at 200. There, the petitioners abandoned three vessels that had

sunk on the Mississippi. Because two of those vessels were obstructing the

waterway, while the third was at risk of leaking highly toxic chemicals into the


       4
         This case presents a slight wrinkle since Jantran sold the Miss Dixie after
the accident. But that fact is of no importance. Maritime liens “follow the ship
into the hands of anyone in whose possession she may come, including an
innocent purchaser.” Id. § 22.

                                          -7-
river, the United States sought an injunction requiring the owners of the first two

vessels to remove them and initiated the emergency removal of the third. Id. at

194–195. As part of its suit, the United States also sought reimbursement for the

costs it incurred in removing the third vessel. Id. at 196.

      Construing language in § 409 that imposed “a duty o[n] the owner, lessee,

or operator of such sunken craft to commence the immediate removal of the

same,” 33 U.S.C. § 409, the Court found the statute created an implied right to

injunctive relief, Wyandotte, 389 U.S. at 203–04. The Court observed that the

purpose of the Act was to “prevent obstructions in the Nation's waterways” and

the criminal and in rem remedies given in the Act were inadequate to effectuate

this purpose. Id. at 201. Without an injunctive remedy the United States could

not enforce the ship owners’ “duty” to remove obstructions, and the costs of

removal to the United States would have been significantly greater than the value

of the offending ships. To deny injunctive relief would have allowed the ship

owner to avoid his duty and thus “shift[] responsibility for the consequences of

his negligence onto his victim” by forcing the United States itself to remove the

ships. Id. at 204.

      Finding the availability of injunctive relief to enforce a ship owner’s duty

to remove his wrecked vessel, the Court went on to hold that it was “but a small

step from declaratory relief to a civil action for the Government’s expenses

incurred in removing a negligently sunk vessel.” Id. at 204. The Court thus

                                         -8-
found that § 409 also must impliedly authorize in personam actions because “[i]t

would be surprising if Congress intended that . . . the Government’s

commendable performance of Wyandotte's duty must be at Government

expense.” Id. at 204–05.

      Although sections 408 and 409 are different, the government nonetheless

argues that because the language and purposes of the two provisions are similar,

they should be interpreted to authorize similar remedies. The government points

out that § 408, which, like § 409, begins by declaring that “It shall not be lawful”

to engage in certain prohibited conduct (namely, damaging a federal water-

control structure). See 33 U.S.C. § 408. From this broad language, the

government argues Wyandotte’s policy of full compensation controls and we

should conclude that the criminal and in rem penalties provided for in the Rivers

and Harbors Act are inadequate to compensate the United States for its losses.

      The parties observe that Wyandotte has led to a split in the circuits over

the proper interpretation of § 408. In a 1977 case, Hines, Inc. v. United States,

551 F.2d 717 (6th Cir. 1977), the Sixth Circuit allowed an in personam recovery

against a ship owner under § 408. In that case, the government sought to recover

for damage that occurred when two barges struck a federal dam, caught fire, and

sank. At issue was whether the Limitation of Liability Act of 1851, which limits

damages in maritime accidents to the value of the offending vessel, see 46 U.S.C.

§ 183, restricts the damages available under § 408.

                                         -9-
      We do not find Hines persuasive. First, it is far from clear that the Sixth

Circuit even addressed the question of whether § 408 authorizes in personam

relief. Rather, the court seems to have assumed that such relief was available

and instead focused on the conflict between the two statutes at issue. Second,

even assuming that the Sixth Circuit did decide the question, its opinion contains

limited textual analysis and thus is of limited persuasive value.

      More recently, in Barnacle Marine Management Inc. v. United States, 233

F.3d 865, 870 (5th Cir. 2000), the Fifth Circuit addressed the very issue we face

in this appeal. Relying on the plain language of the Act, the court found that §

408 did not authorize in personam actions. Id. Specifically, the court found that

the Supreme Court’s decision in Wyandotte was not controlling, because “the

Wyandotte Court expressly relied on language peculiar to § 409” that “create[s] a

duty on the owner of the sunken vessel to remove it.” Id. (emphasis added). The

court explained that it was the unique, duty-creating language of § 409 that

caused the Supreme Court to find that the section contained an implied right to

injunctive relief, and that it was the right to injunctive relief that justified finding

an implied in personam action in § 409. See id. (“The Court stated that ‘[i]t is

but a small step from declaratory relief to a civil action . . . .’” (quoting

Wyandotte, 389 U.S. at 204)). Because § 408 does not, by its terms, create any

duties, the Fifth Circuit found that Wyandotte was not applicable. Id. The Fifth

Circuit also correctly observed that the Supreme Court has in recent years

                                          -10-
avoided creating implied rights of action, concluding lower courts “should be

reluctant to imply a remedy broader than Congress expressly provided.” Id.

(citing Karahalios v. Nat’l Fed’n of Fed. Emps., Local 1263, 489 U.S. 527,

532–33 (1989); California v. Sierra Club, 451 U.S. 287 (1981); Touche Ross &

Co. v. Redington, 442 U.S. 560 (1979)).

      We find this analysis persuasive. In our view, Wyandotte is best read as

relying on the unique, duty-creating language of § 409. Section 409’s creation of

a duty to remove sunken vessels was of obvious relevance to the Court’s finding

that the government could obtain an order directing ship owners to remove those

same sunken vessels and, as the Court stated, “[i]t is but a small step from

declaratory relief to a civil action.” Wyandotte, 389 U.S. at 204. The Court

further highlighted the importance of § 409’s duty-creating language to its in

personam holding by noting that “[i]t would be surprising if Congress intended

that . . . the Government’s commendable performance of Wyandotte’s duty must

be at Government expense.” Id. at 204–05 (emphasis added).

      In response, the government argues that Congress did not intend for the

lack of a statutory duty under § 408 to imply that it authorizes fewer remedies

than does § 409. Rather, the absence of duty language in § 408 merely reflects

the undesirability of having private parties repair government locks and dams.

Although this may explain why § 408 does not contain an independent duty, this

observation does not affect our analysis. The simple fact is that § 409 does

                                        -11-
contain an explicit duty, and that duty was key to finding an implied right to

injunctive relief in Wyandotte. Because § 408 contains no such duty, there is no

textual hook from which to infer that Congress intended for § 408 to authorize in

personam relief.

      We also reject the government’s contention that sections 408 and 409

should be read to authorize the same remedies simply because they both begin,

“It shall be unlawful to . . . .” See 33 U.S.C. §§ 408, 409. Such a reading would

require us to ignore the subsequent, relevant differences in the statutes and base

our analysis on what is, essentially, a boilerplate introduction. As a result, we

find that our analysis is not bound by the Supreme Court’s decision in Wyandotte

and rely on the text of the Rivers and Harbors Act.

      The structure and text of the Act provide additional clues. The Act

contains two remedy sections—sections 411 and 412—and one would not

ordinarily expect a non-remedial section, such as § 408, to authorize broader

remedies by implication than those already expressly provided. In fact, the

Supreme Court has repeatedly observed that, “It is . . . an ‘elemental canon’ of

statutory construction that where a statute expressly provides a remedy, courts

must be especially reluctant to provide additional remedies. In such cases, in the

absence of strong indicia of contrary congressional intent, we are compelled to

conclude that Congress provided precisely the remedies it considered




                                        -12-
appropriate.” Karahalios, 489 U.S. at 532–33; see also, e.g., Sierra Club, 451

U.S. 287.

      Despite this guidance, the government contends we should decline to apply

the presumption against implied remedies in interpreting the Rivers and Harbors

Act because the implied remedies would be in favor of the United States and not

private parties.

      We are not persuaded. First, the government has not advanced any

argument explaining why we should favor inferring public remedies over private

ones. Nonetheless, our analysis likely would not change even if the government

had presented a clear policy argument for preferring public remedies. The

proposition that courts ought to be reluctant to find implied remedies where an

act expressly provides other remedies is, in essence, a variation of the negative

implication, or expressio unius, canon, which holds that “the expression of one

thing implies the exclusion of others.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 107 (2012). This canon is based

on “how people express themselves and understand verbal expression.” Id. It

guides us to the most principled interpretation of the text itself—it is not merely

a policy-based rule of thumb that can be set aside because of countervailing

policy concerns. Given this, we reject the argument that the negative implication

canon only applies when private remedies are at issue. See also United States v.

City of Philadelphia, 644 F.2d 187, 191–92 (3d Cir. 1980) (“We reject the

                                        -13-
argument that Wyandotte established a different standard for inferring rights of

action in favor of the government than the standard applicable to private

litigants.”).

       This conclusion, however, does not end our analysis. As noted above, the

Supreme Court has held a court still may infer an omitted remedy when there are

“strong indicia of contrary congressional intent.” See Karahalios, 489 U.S. at

532–33. To this end, the government asserts that Congress could not have

intended that the only civil recoveries under § 408 be in rem against the

offending ship as it is possible to violate § 408 without using a ship at all. As

the government correctly asserts, § 408 begins by stating that “[i]t shall not be

lawful for any person or persons to . . . in any manner whatever impair the

usefulness” of any federal water control structure. 33 U.S.C. § 408 (emphasis

added). It is thus possible to violate § 408 without using a ship by, for instance,

standing on top of a protected structure and striking it with a sledgehammer.

       Although this argument might have merit, the government fails to

demonstrate that it would, in fact, be limited to in rem relief in such cases. If

someone did decide to take a sledgehammer to a federal dam, we can find no

reason why the United States could not sue outside of the Rivers and Harbors Act

and recover on a negligence or trespass theory. The government has not pointed

to any other language in the Act that demonstrates a congressional intent to




                                         -14-
provide for an in personam remedy in lieu of other civil remedies available to the

Corps.

      Because nothing in the text of the Rivers and Harbors Act indicates a

congressional intent to allow for an implied cause of action against Jantran, we

are compelled to find no other remedies are available. We thus hold that the

government may not bring in personam actions against vessel owners for

violations of § 408 of the Act.

                                  II. Conclusion

      The District Court’s Order dismissing the action is AFFIRMED.




                                        -15-
