(dissenting).
The relevant statutes are, indeed, “difficult to interpret in their application to our problem,” but a construction which affords the United States the remedy which it seeks is strongly suggested by United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960).
Appellees’ alleged conduct in negligently sinking a ship in a navigable channel concededly violated 33 U.S.C. § 409.1 *523Section 409, like Section 403, reflects the interest of the United States in the unobstructed navigability of its waters. Republic Steel holds that to protect this interest an injunctive remedy must be implied against those who create unauthorized obstructions in violation of Section 403; therefore a like remedy is to be implied against those who voluntarily or carelessly sink vessels in navigable channels in violation of Section 409. Since the United States may by mandatory injunction impose the burden of removal upon one who sinks a ship in violation of Section 409, the government should not be denied restitution if it is compelled to assume the costs of removal by the refusal of the wrongdoer to discharge his duty. See Restatement, Restitution § 115 (1937)2
Neither of the reasons advanced in support of the contrary result seems sufficiently strong to overcome the compelling analogy of Republic Steel.
1. It is argued that an injunctive remedy was implied in Republic Steel because the peculiar factual circumstances of that case made imposition of the fine provided by 33 U.S.C.A. § 406 an ineffectual remedy. But the statute also provided for imprisonment of the persons involved for up to one year, which would seem to be an effective deterrent. Moreover, if the deterrent effect of the fine alone were determinative, the government points out that disposing of an obsolete vessel is often a burdensome and expensive undertaking, and that liability for a fine “not exceeding $2,500” (33 U. S.C. § 411) in return for the privilege of “voluntarily or carelessly sinking” a worthless vessel in some spot convenient to the owner might not be a deterrent, but a tempting bargain.
2. The second argument against implying an in personam remedy for violation of Section 409 on the basis of Republic Steel is that the pertinent statutory language, read in the light of an asserted right of the owner of a sunken vessel to abandon it, reveals a congressional purpose to confine the government to an in rem remedy against the sunken ship.
The mandate of the statute (“It shall not be lawful * * * to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels * * *.”) is directed against personal conduct,3 and does not depend at all upon ownership of the vessel sunk.
If, as the analogy of Republic Steel suggests, a civil remedy is to be implied to protect the interests of the United States reflected in the prohibition in Section 409, the remedy should be co-extensive with the statutory prohibition; it should be available against the wrongdoer whether or not he is also the owner of the vessel. An innocent shipowner should be free of removal costs because his innocence places him beyond the reach of the prohibition in Section 409; but one who voluntarily or carelessly sinks a vessel should not be permitted to avoid liability for the costs of his wrongdoing simply because he happens also to own the vessel, and chooses, in his own interest, to abandon it.
The pertinent court decisions are few, and divided.4 However, the suggested *524reading of the statute is supported by the administrative interpretation adopted by the Army Corps of Engineer,5 which, “while not conclusive of course, is entitled to ‘great weight.’ ” United States v. Republic Steel Corp., 362 U.S. 482, 490 n.5, 80 S.Ct. 884, 889 (1960).6 It is probably supported, too, by the concession of appellees, and of this Court, that the United States may obtain a personal judgment against the wrongdoers for removal costs if the sinking is deliberate. Since appellees and the Court reject any common-law basis for recovery, this conceded liability must rest on statute. If liability is based on Section 409 7 it must exist whether the sinking is caused deliberately “or carelessly.”
The provisions of Section 409 and its related sections relied upon by appellees are not inconsistent with this construction.
The concluding provisions in the last sentence of Section 409, which impose a duty upon the owner of a sunken vessel to mark the wreck and proceed diligently to remove it, are wholly distinct in purpose and application from the prohibition of negligent or willful sinkings. The obligations which these provisions impose have nothing to do with fault; they are solely a consequence of ownership, and the statute appropriately states that they may be terminated by abandonment of ownership. There is no reason to imply a similar limitation upon the remedy available against a wrongdoer who violates the prohibition against deliberately or negligently sinking a vessel (which he may or may not own). ■
Similarly, Sections 414 and 415, authorizing the Secretary of the Army to remove and dispose of wrecks, are independent of the prohibition of negligent or willful sinkings. The purpose of these provisions, like that of the provisions in the last sentence of Section 409, is to regulate the relationship between the Secretary and the owner of the wreck; they apply without regard to the cause of sinking. There is nothing in their language 8 or purpose 9 to suggest *525that Congress intended Sections 414 and 415 to affect in any way the civil liability of a wrongdoer (one who is perhaps a stranger to the owner), who caused the wreck in violation of Section 409.
Nor can an intention to limit the liability of such a wrongdoer be drawn from a general doctrine allowing a shipowner to abandon his vessel without liability.
First, the privilege applies only to a shipowner, whereas the prohibition of Section 409 applies to all who negligently or willfully sink vessels in navigable channels. Second, it has not been demonstrated that the asserted privilege is applicable at all in the only circumstances in which Section 409 applies, that is, where the wreck results from negligent or willful conduct. The government contends that the privilege of terminating liability by abandonment, like the statutory right of a vessel owner to limit liability,10 is available only if the owner is without “privity or knowledge.” Appellees assert that the privilege is absolute, or at least is not barred by negligent conduct, as distinguished from conduct which is willful. The authorities cited to the issue by both sides are at best meager and inconclusive.11 Giving appellees the benefit of every doubt, these authorities do not establish with sufficient certainty the existence of a privilege available despite negligence, to jus*526tify the assumption that Congress drew the unequivocal prohibitory language of Section 409 with such an exemption in mind, or intended the remedies for the enforcement of Section 409 to be limited by such an exemption.
. It may have violated 33 U.S.C. § 403 as •well. In common usage the term “obstruction” would include a sunken vessel in navigable water. It has this meaning in 33 U.S.C. § 414 and § 415. The term as used in § 10 of the Act of Sept. 19, 1890, was said to include “anything, wherever done or however done * * * which tends to destroy the navigable capacity of one of the navigable waters of the United States.” United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 708, 19 S.Ct. 770, 777, 43 L.Ed. 1136 (1899), and this broad definition was applied to the term in § 403 of the present Act in United States v. Republic Steel Corp., 362 U.S. 482, 487-488, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). In United States v. Wilson, 235 F.2d 251 (2d Cir. 1956), it was assumed that the term, as used in § 403, extended to vessels. The same assumption was made by • the court in United States v. Bridgeport Towing Line, Inc., 15 F.2d 240 (D.Conn.1926), although the court also held that § 403 was not violated by negligent or accidental acts as distinguished from “consciously directed action.” See also United States v. Hall, 63 F. 472, 474-475 (1st Cir. 1894), holding a vessel to be an “obstruction” within the provisions of § 10 of the Act of *523Sept. 19, 1890. But see In re Eastern Transp. Co., 102 F.Supp. 913, 915-916 (D.Md.1952), aff’d sub nom. Ottenheimer v. Whitaker, 198 F.2d 289 (4th Cir. 1952).
. Compare United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947), in which the Supreme Court rejected the suggestion that it should create, not merely a remedy to protect a statutorily defined interest, but a new basis for liability not founded upon statute.
. One who willfully commits the acts prohibited by § 409 may be fined and imprisoned, and, if he is a licensed master pilot, or engineer, is subject to the additional penalty of loss or suspension of his license. 33 U.S.O. § 412.
. The imposition of liability under § 409 where the sinking is deliberate or negligent is supported by the rationale of Chief Judge Coleman’s decision in In re Eastern Transp. Co., 102 F.Supp. 913, 916-917 (D.Md.1952), although the sinking in that case was not only voluntary *524but also only proposed. The recent bolding of the Court of Appeals of the Third Circuit in United States v. Zubik, 295 F.2d 53 (3d Cir. 1961), and of the District Court in The Manhattan, 10 F.Supp. 45, 49-50 (E.D.Pa.1935), are to the contrary. The latter case held that removal costs could not be recovered from a third party who negligently caused a vessel to be sunk in a navigable channel.
. 33 C.F.R. 209.410 (1962), first published at 11 Fed.Reg. 177 A-828 (1946), reads:
“Abandonment of wreehs.
“By the maritime law the owner of a vessel which is sunk without fault on his part may abandon the wreck in which case he cannot be held responsible for removing it even though it obstructs navigation. That law has not been changed by sections 15, 19, and 20 of the Rivers and Harbors Act of March 3, 1899 (30 Stat. 1152, 1154; 33 U.S.C. 409, 414, 415), which fully recognize the owner’s right of abandonment. However, a person who willfully or negligently permits a vessel to sink in navigable waters of the United States may not relieve himself from all liability by merely abandoning the wreck. He may be found guilty of a misdemeanor and punished by fine, imprisonment, or both, and in addition may have his license revoked or suspended. He may also be compelled to remove the wreck as a public nuisance or to pay for its removal.”
. See F.H.A. v. Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958); Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933).
. The only other possible statutory basis for liability would appear to be § 403. See note 1, supra. See also United States v. Hall, 63 F. 472 (1st Cir. 1894), which was decided, however, before the express prohibition of deliberate or careless sinkings in what is now § 409 came into the law as § 15 of the Act of March 3, 1899, 30 Stat. 1152.
. It is true that § 414 allows the Secretary to dispose of an abandoned wreck and § 415 gives the Secretary a lien against a vessel for removal costs where the craft is not abandoned, but these specific provisions for economic, recovery against the vessel do not argue against imposing liability upon the wrongdoer. As noted, identity of wrongdoer and shipowner would be only coincidental. Even where it occurred, the value of the wreck, as in the present case, might bear no relation to the costs of removal.
*525The same comment applies to the provision of § 412 that a vessel “used or employed” in violating § 409 shall be liable for the pecuniary penalties specified in § 411, and for the damage done by the vessel.
. The purpose of what are now § 414 and § 415 is summarized in H.R.Rep. No. 1S26, 55th Cong., 3d Sess. 4 (1899):
“Section 6 and 7 relate to the removal of wrecks from harbors and navigable channels. Under the present law unnecessary delay might occur in removing obstacles from navigable waters, and serious injury to commerce might result from the lack of an efficient and prompt remedy for clearing channels which may be encumbered by wrecks. This Act modifies the existing law. It contains two provisions — section 6, providing for ordinary cases, the scope of which is not greatly different from existing statutes on the subject. The second, or section 7, provides for emergencies, and authorizes the immediate removal or destruction of such wrecks or obstructions as stop or endanger navigation. It is thought that the two sections afford provision for the interests of commerce and at the same time give to the owners of wrecks and abandoned property all possible protection consistent with the essential interest of navigation.”
. 46 U.S.C.A. § 183; Gilmore and Black, The Law of Admiralty 695-97 (1957).
. Appellees’ authorities, considered in chronological order are: Loud v. United States, 286 F. 56 (6th Cir. 1923), which denied recovery of removal expenses against the ship under § 415 because the government failed to assert its lien, but, so far as appeared, involved neither negligence nor abandonment; United States v. Bridgeport Towing Line Inc., 15 F.2d 240 (D.Conn.1926), which denied an injunction under § 403, on the ground that negligent sinkings, as distinguished from those deliberately caused, were not within that section; The Manhattan, 10 F.Supp. 45 (E.D.Pa.1935), which is relevant to another point (see note 4) but which involved neither a negligent owner of a sunken ship nor abandonment; Zubik v. United States, 190 F.2d 278 (3d Cir. 1951), in which the pertinent comment is admittedly dicta; United States v. Wilson, 235 F.2d 251 (2d Cir. 1956), which involved no negligence, and which was based upon a limitation of remedies drawn from § 406 which was expressly rejected in Republic Steel (a comment also applicable to Bridgeport Towing, supra); and United States v. Zubik, 295 F.2d 53 (3d Cir. 1961), which is factually in point, but relies not at all upon the right to abandon but rather upon the court’s reading of the pertinent sections as limiting the government to in rem recovery.
Appellant relies upon the holding in Petition of Boat Demand, Inc., 174 F.Supp. 668 (D.Mass.1959), imposing liability for removal expense upon the negligent boat owner despite attempted abandonment, though on the suit not of the United States but of the owner of the wharf at which the vessel rested; and upon language in In re Highland Nav. Corp., 24 The same comment applies to the provision of § 412 that a vessel “used or employed” in violating § 409 shall be liable for the pecuniary penalties specified in § 411, and for the damage done by the vessel. 582 (S.D.N.Y.1927), and Hagan v. City of Richmond, 104 Va. 723, 52 S.E. 385, 3 L.R.A.,N.S., 1120 (1905), indicating that abandonment limits liability only if the sinking was without fault of the owner.