AMY J. ST. EVE, District Court Judge:
Ingram Barge Company ("Ingram") has filed a motion to dismiss the in personam claim that the United States asserts against Ingram under Section 408 of the Rivers and Harbors Act (the "Act"). For the following reasons, the Court grants Ingram's motion with prejudice [464].
On May 8, 2013, Ingram, as owner of the M/V Dale A. Heller ("Dale Heller") and seven barges, filed a complaint for exoneration from or limitation of liability. The complaint anticipated that claimants would bring various claims against Ingram, the Dale Heller, and the seven barges as a result of an April 18, 2013 incident. (R. 1, Compl. at 3-4.)
On June 24, 2013, the United States filed a claim in Ingram's limitation action for damages to the Marseilles Dam and related structures. (R. 129.) The United States' claim alleges three counts against Ingram: 1) violations of sections 408 and 409 of the Rivers and Harbors Act; 2) negligence under the general maritime law; and 3) creation of a public nuisance. (Id. at 17-22.) The United States seeks the expenses it incurred to remove Ingram's barges from the dam, and the costs to repair damage caused by the barges. (R. 473, Opp. to Mot., at 3.) The United States represents that to date it has spent more than $6.8 million for repairs and will incur additional costs, including a $19.9 million contract to repair the dam. (Id.)
Ingram now moves to dismiss the government's first count under section 408 of the Rivers and Harbors Act to the extent it asserts an in personam claim against Ingram, rather than an in rem claim against the Dale Heller and its tow of seven barges.
Ingram brings its motion under Rule 12(b)(6), although the government argues that Ingram should have brought it under Rule 12(c) because the pleadings have closed. Regardless, courts apply the Rule 12(b)(6) standard to both. See Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.2009) ("[w]e review Rule 12(c) motions by employing the same standard that applies when reviewing a motion... under Rule 12(b)(6)"). "A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.2012). Under Rule 12(b)(6), a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Put differently, a "complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true," Alam v. Miller
Ingram moves to dismiss the in personam claims brought by the United States under Section 408 of the Rivers and Harbors Act. Section 408 proscribes conduct that damages a water-control structure built by the United States. It states in pertinent part:
33 U.S.C. § 408. Section 408 does not itself provide a remedy. Instead, Sections 411 and 412 of the Act provide two different remedies for violations of Sections 408 (and certain other sections of the Act). Section 411 authorizes criminal 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 ..." Id. § 411. Section 412 provides that the government may bring an in rem claim against the vessel that caused the violation of the Act. It states in part:
33 U.S.C. § 412.
Ingram argues that because the Act only specifically provides for in rem liability against the vessel that caused the Section 408 violation, the government cannot bring an in personam claim against it. The government does not dispute that the Act only specifically provides for in rem liability for violations of Section 408, not in personam liability. It argues instead that the Court should find that the government has an implied right to bring an in personam claim under Section 408.
The parties first disagree over the applicability of Seventh Circuit precedent. Ingram contends that the law in the Seventh Circuit is settled that Section 408 only provides for in rem liability. The government disagrees, arguing instead that the Seventh Circuit authority on this issue is unresolved.
The key case in the Seventh Circuit is United States v. Ohio Valley Co., Inc., 510 F.2d 1184 (7th Cir.1975). In Ohio Valley, the Seventh Circuit addressed the question
Id.
In reaching its decision, the Seventh Circuit also examined the Supreme Court's decision in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). In Wyandotte, the Supreme Court held that the government has an implied right to bring an in personam claim under Section 409 of the Rivers and Harbors Act. Id. at 193-94, 88 S.Ct. 379. Section 409, known commonly as the "Wreck Act," prohibits the obstruction of navigational channels, including by sunken vessels. It states:
33 U.S.C. § 409. Importantly, the Wreck Act also establishes that in the event a vessel is wrecked and sunk in a navigable channel, "it shall be the duty of the owner, lessee, or operator of such sunken craft to immediately mark it with a buoy or beacon during the day and ... a light at night..." and to "commence the immediate removal of the [vessel], and prosecute such removal diligently ..." Id. Wyandotte reached its holding in part because it
In Ohio Valley, the Seventh Circuit applied the holding in Wyandotte to its analysis of whether the Limitation of Liability Act applied as a defense to Section 408. It reasoned that because Wyandotte implied an in personam remedy under the Wreck Act and courts have generally held that the Limitation of Liability Act cannot serve as a defense to a Section 409 claim, the fact that Section 408 does not permit in personam liability meant that the Limitation of Liability Act was even more inapplicable to Section 408. Ohio Valley, 510 F.2d at 1189 n. 9. The Seventh Circuit explained:
Id. Thus, while the parties in Ohio Valley did not directly present the Seventh Circuit with the issue of whether the government could bring an in personam claim under Section 408, the Seventh Circuit based its decision in part on such a claim being unavailable to the government.
The government next argues that the Court should find an implied in personam remedy under Section 408 based on the Supreme Court's decision in Wyandotte. As discussed above, Wyandotte held that the government had an implied right to bring an in personam action under Section 409 of the Act. While the government acknowledges that the Wyandotte decision was based in part on the duties that Section 409 imposes on the owner of a vessel (which Section 408 does not impose), it argues that the Supreme Court also
Several other circuits, however, have rejected Wyandotte's application to Section 408 and emphasized the importance of the "duty-creating" language of Section 409 to the Court's decision in Wyandotte. In In re Barnacle Marine Mgmt. Inc., 233 F.3d 865 (5th Cir.2000), for example, the Fifth Circuit analyzed whether the holding in Wyandotte applied to Section 408. It held that it did not, stating:
Id. at 870.
The Tenth Circuit recently reached a similar conclusion in United States v. Jantran, Inc., 782 F.3d 1177, 1182, 2015 WL 1567036, No. 13-7060, at *5 (10th Cir. Apr. 9, 2015). It stated:
Jantran, 782 F.3d at 1182-83, 2015 WL 1567036, at *5. Thus, both these decisions limited the holding in Wyandotte to Section 409 based on the duty that Section 409
The government notes that the Sixth Circuit has held that the government can bring an in personam claim under Section 408. See Hines, Inc. v. United States, 551 F.2d 717, 720-23 (6th Cir.1977). In Hines, the Sixth Circuit addressed in part whether the Limitation of Liability Act could serve as a defense to a Section 408 claim, the same issue that the Seventh Circuit addressed in Ohio Valley. Where Ohio Valley based its holding in part on the fact that the government can only bring a Section 408 claim in rem against the offending vessel, Hines took the opposite position and assumed in its holding that the government could bring a Section 408 claim in personam against the vessel owner. Id. As the Tenth Circuit noted in Jantran, however, in Hines, "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." Jantran, 782 F.3d at 1181-82, 2015 WL 1567036, at *4.
As discussed above, the Seventh Circuit's finding in Ohio Valley that Section 408 does not permit in personam liability is binding on this Court. Even if it were not, however, the Court agrees with the reasoning in Jantran and In re Barnacle Marine Management. The holding in Wyandotte that the government has an implied right to bring an in personam claim under Section 409 was based on that section's unique language imposing an affirmative duty on vessel owners to remove a sunken vessel that obstructs a navigable waterway. Since there is no analogous duty under Section 408, there is not a basis for implying an in personam remedy where Congress did not provide for one explicitly. Finally, as the government notes in its response, it still has the ability to pursue its remaining Rivers and Harbors Act claims against Ingram, including its Section 408 in rem claim and its Section 409 in rem and in personam claims, in addition to its negligence and public nuisance claims.
For the foregoing reasons, the Court grants Ingram's motion to dismiss the in personam claims brought by the United States under Section 408 of the Rivers and Harbors Act with prejudice.
