The odyssey of the M/V ECLYPSE-- a 83' two-masted woodenhull schooner-- in the Port of Jacksonville, Florida was brief but perhaps too long. As a result of her shortened, but lengthened, stay, Raven, her owner, was convicted by a federal jury of the three misdemeanors (i) failing to properly mark a sunken vessel, (ii) obstructing a navigable waterway and (iii) failing to remove a sunken vessel. He was sentenced to 30 days suspended sentence on each of these counts to run concurrently. Because we affirm his conviction on (i) and (ii), under the concurrent sentence doctrine we do not reach his challenge to (iii).1

During the summer of 1973, Michael R. Raven brought the ECLYPSE into the harbor at Jacksonville, Florida. According to his story, which is the heart of most of what we describe, the presence of the vessel apparently provoked great concern on the part of the Jacksonville Sheriff's Office. Believing apparently that he was suspect to the authorities,2 Raven thought better of berthing the vessel at a private dock and removed it to an anchorage in the St. Johns River. But this was no haven. For soon afterwards a violent storm swept the ECLYPSE into the Fuller Warren Bridge, which spans the river. The ship was damaged severely. With planks and beams started and the hull already leaking, Raven on September 23, 1973 decided to move the ECLYPSE up river to Goodbye's Lake where he grounded her toward the river's easterly shore.

Despite Raven's efforts-- which the jury thought inadequate-- to pump out the vessel and raise it, she settled further into the water so that it was plain she was not a vessel either afloat or navigable.

Then came the perils, not of the sea, but of the establishment as it is personified in the corps of Engineers.3

On September 20, 1973 the Jacksonville Corps of Engineers sent Raven a letter in care of his local attorney4 complaining that his sunken vessel was obstructing and endangering navigation. He was ordered to mark the ECLYPSE by buoy and lantern, take immediate action to remove it, and advise the Corps within the week of his plans. Raven did not respond to the letter and the Corps referred the matter to its District Counsel. Again on November 23, 1973 another letter was sent to Raven warning him that if the obstruction was not removed, the Corps would recommend to the United States Attorney that appropriate criminal and civil action be commenced. This letter was sent this time to him both at his California address and in care of his counsel.

Whatever the reasons for not receiving these patient letters or acting upon them, Raven delayed any action until he received final impetus from the United States Attorney in the form of a letter requesting that Raven contact him before the close of business on December 12, 1974 'to forestall the legal actions contemplated.' In response, Raven. choosing his own methods, advised the Government Counsel that he would not visit his office for the suggested conference and that the ECLYPSE would be raised on Saturday or Sunday. The same day the Assistant U.S. Attorney filed the three-count information and Raven was arrested on Saturday morning while trying to salve the ECLYPSE.

After a lengthy trial the jury returned a verdict of guilty on all counts. The sentence was relatively slight, 30 days on each count to run concurrently which was thereafter suspended by the Judge. Raven, with the true heart of the sea lawyer, appealing to the liberality of the admiralty, brings this to us on principle, not principal.

Each of the counts of the information charged a continuing violation of the specified section as 'beginning . . . on . . . the 21st day of September, 1973 and continuing until the 12th day of December, 1973 . . .'. The specifics were (i) obstructing navigation (ii) failure to light and mark and (iii) failure to remove.

Raven challenges Count I charging him with creating an obstruction by permitting the ECLYPSE to sink and remain sunk in the St. Johns River on the grounds that (1) 403 does not specifically refer to vessels, and (2) 403 requires the specific intent to obstruct the waterways by affirmative, deliberate acts.

We find no merit in this or the related contention that the evidence was insufficient. Nothing could be more of an obstruction to navigation than a sunken vessel either in or near waters that are open for the use of others. If floating particles can be an obstruction, certainly an 83 ft. schooner, as here, can be. See United States v. Republic Steel Corp., 1960, 362 U.S. 482, 487, 80 S. Ct. 884, 4 L. Ed. 2d 903.6

As to the charge that the acts must be deliberate, the words 'knowingly and negligently' were struck from the charge on Raven's own request. Even so, the proof showed a deliberate act which eliminated any question on that score.

We do mention at this point our concern expressed later regarding the duty to remove, that we do not hold-- or even imply-- that the purposeful stranding of a vessel to salve her constitutes a 403 obstruction no matter how much she intrudes into the channels of navigation. What we are dealing with here is a continuous act for nearly three months during which the perils assayed in the deliberate grounding could readily have been averted.

Counts II and III of the Information charged that Raven:

. . . did knowingly and willfully neglect or fail to immediately mark such sunken craft with a buoy or beacon during the day and a lantern at night and to maintain such marks until the sunken craft was removed or abandoned . . .

and 111

. . . did knowingly and willfully fail to commence the immediate removal of the same and to prosecute such removal diligently . . .

Raven argues that these counts fail to state a valid charge because 409 by its language does not reach a vessel grounded in the peculiar circumstances of the ECLYPSE. First, he would have us read the statute as imposing a duty to mark solely on the owners of those crafts that are both wrecked and sunk in a distinct, navigable channel. This contention is meritless. Congress did not intend 409 to be so meager as to extend only to those vessels that are sunk as a result of wrecks and exempt those equally-hazardous derelicts sunk due to other causes.8

The purpose of this statute is the protection of other vessels plying the same waters. Consequently it is similarly unnecessary for the government to prove that the ECLYPSE was swamped in a distinct channel since the evidence demonstrated that she was stranded in navigable waters capable of sustaining the traffic of other vessels.9 Indeed, the fact that the ECLYPSE could get as far as to be stranded proves navigability as she went purposefully aground.

Although we find 409 applicable and the proof sufficient to establish that these actions were 'voluntarily or carelessly sink, or permit or cause to be sunk (the ECLYPSE) in navigable channels . . .' (See note 7 supra), we expressly pretermit affirmance on this count under the concurrent sentence doctrine.10

We do this because there are inescapable problems of great magnitude-- some perhaps of constitutional proportions-- in the use of a criminal sanction to punish one for the failure to pay out money to remove the wreck without a showing (i) that in a civil proceeding the government would legally be entitled to recover the costs and, perhaps more decisively (ii) the respondent was financially able to respond.11

Sweeping as are the obligations under the Rivers and Harbors Act, the duty to pay is confined to those who negligently cause the obstruction. Wyandotte Co. v. United States, 1967, 389 U.S. 191, 88 S. Ct. 379, 19 L. Ed. 2d 407. Where the owner does nothing, as here, so as to bring about a constructive abandonment (see 33 U.S.C.A. 409, note 7 supra) and the government likewise does nothing except prosecute criminally, to subject him to a criminal sanction is to prejudge both his ultimate Wyandotte civil liability and his financial ability to pay. Considering that maritime laws encourage all efforts to salve ship, cargo, and persons,12 each is wrapped up either in civil uncertainty13 or in the prospect obnoxious to the Twentieth Century of the debtors gaol.

Lastly, Raven argues that this conviction should be set aside because he was singled out as the first subject of a criminal prosecution based on these statutes in the Jacksonville area, despite the presence of numerous derelicts lining the river. He points to the absence of a civil prosecution by the government as evidence that the intent of the government was to harass alone. Even assuming that appellant may challenge the prerogative of the Executive to commence criminal actions-- highly doubtful in the face of United States v. Cox, 5 Cir., 1965, 342 F.2d 167 (Brown, J. specially concurring), cert. den., Cox v. Hauberg, 381 U.S. 935, 85 S. Ct. 1767, 14 L. Ed. 2d 700-- none of the evidence offered required the trial court to find bad faith enforcement on the part of the government.14

The odyssey ends, as it began, in the Port of Jacksonville.

Affirmed.