Regardless of whether a proceeding under the Navy Regulations constitutes a jeopardy within the meaning of the fifth amendment to the Constitution, it is apparent that the proceedings above detailed can not be regarded as a jeopardy. While Doctor Ames, in his communication to the commandant of the Boston Navy-Yard, detailed particularly the facts upon which his accusation was based, yet there was never anything more than a private investigation of the matter by the commandant, and a report thereon to the Secretary of the Navy.

Respectfully,

GEORGE W. WICKERSHAM.

THE PRESIDENT.

STEAMER "JOHN B. KETCHAM 2ND"-REMOVAL FROM

CHANNEL.

Where a steamer (the John B. Ketcham 2nd) ran into a bank at the entrance to the West Neebish channel, and swung around, sinking in the middle of the channel, so as to completely obstruct navigation between the Lakes Superior and Huron, and the engineer officer of the Government thereupon took immediate possession of the vessel under section 20 of the river and harbor act of March 3, 1899 (30 Stat. 1154), and employed a wrecking company to swing it from the channel, said vessel, upon the failure of the owners thereof to pay for this service, may be regarded as having been abandoned and forfeited to the United States.

The subsequent action of the wrecking company in raising the vessel and removing it from the jurisdiction of the United States, and in refusing to turn it over to the War Department, thus placing it beyond the power of the United States to enforce its lien, may not relieve the Government of its responsibility to that company for the expense incurred by it in removing the vessel from the channel, but it would seem to justify the Government in refusing to pay such claim unless the vessel is brought within the jurisdiction of the United States, so that it may be attached and sold for the benefit of all claimants, including the United States, according to their respective rights and priorities.

The liens acquired by the wrecking company upon the vessel, by virtue of the services rendered by it in raising the vessel and towing it into port, are superior to that which the United States would have if it paid the company for removing the vessel from the channel. The authority of the Secretary of War under section 20 of the act of March 3, 1899 (30 Stat. 1154), to pay the claims of the wrecking company, other than for the expenses incurred in removing the vessel from the channel, doubted.

DEPARTMENT OF JUSTICE,

February 28, 1911.

SIR: I have the honor to reply to your letter of the 17th

ultimo, reading as follows:

"The steamer John B. Ketcham 2nd, during a fog, ran into a bank at the entrance to the West Neebish channel, and swung around, sinking in the middle of the channel, so as to completely obstruct navigation between Lakes Superior and Huron. As the need of immediate relief to navigation was imperative, the local engineer officer (Col. Curtis McD. Townsend), upon being notified of the condition of affairs, took immediate possession of the vessel under section 20 of the river and harbor act of March 3, 1899 (30 Stat. 1154), and employed the Reed Wrecking Company to swing the vessel free from the channel, which company submitted a bill to the owners, through the local engineer officer, of $18,000 for this service. Upon the completion of this work, the said company raised the vessel for the owners and took it to Port Huron, Mich., a distance of several hundred miles, charging $12,000 for this additional service. An estimate of cost of $14,000 for repairing the vessel has been submitted-the cost of removing the sunken vessel from the channel, raising it, and repairing it thus aggregates $44,000. The value of the vessel is understood to exceed the aggregate amount of these several claims.

"The wrecking company, a Canadian concern, has taken the vessel to Canada, and holds the same as security for the payment of the $12,000 charged for the completion of raising the vessel and taking it to Port Huron. The company demands payment of the $18,000 charged for removing the vessel from the channel, but has been notified that the Government will not pay this amount unless the vessel is turned over to the United States. The company has ignored this notice.

"It is claimed by the owners that the Government should assume the liability of $18,000; that this amount is unreasonable and was expended simply in clearing the channel; that the expenditure was of no benefit to the owners, but that, on the contrary, the vessel was damaged in the

process to the extent of $7,000 by the action of the wrecking company employed by the Government to swing the vessel out of the channel in not sufficiently releasing the boat from the rocky bottom of the channel; and that the statute under which the Government makes claim for the amount expended in clearing the channel is unconstitutional, for the reason that it provides that in case the boat shall be sold under circumstances like those of the case under consideration, the whole proceeds shall be turned over to the Government, regardless of whether the same may exceed the amount necessary to reimburse the Government."

Upon this state of facts you request my opinion on the following questions:

"1. Whether or not the provision that the whole proceeds shall be turned over to the Government, regardless of the amount necessary to reimburse the United States, is unconstitutional; and, if so, whether the unconstitutionality of this provision renders the lien created by the statute for the expense of removing the vessel from the channel also unconstitutional, or whether the lien can be severed from the objectionable provision and enforced by suit against the vessel.

"2. Whether or not the Secretary of War, if the lien be regarded as unconstitutional, has power to waive the claim of $18,000 against the boat.

"3. Whether, in view of the fact that the Reed Wrecking Company has removed the vessel from the jurisdiction of the United States, and has refused to turn her over to this department, thus putting it beyond the power of the United States to enforce its lien and, in effect, destroying the security of the United States, the Government is relieved of responsibility to the company.

"4. Whether or not, in view of the other claims against the vessel, the department has authority to pay the claims of the Reed Wrecking Company and thus secure the boat so that suit can be brought against the vessel to enforce the lien for the amounts so paid."

The law respecting the removal of sunken vessels and other similar obstructions from the navigable waters of

the United States is contained in sections 19 and 20 of the river and harbor act of March 3, 1899, chap. 425 (30 Stat. 1154). Those sections provide:

"SEC. 19. That whenever the navigation of any river, lake, harbor, sound, bay, canal, or other navigable waters of the United States shall be obstructed or endangered by any sunken vessel, boat, water craft, raft, or other similar obstruction, and such obstruction has existed for a longer period than thirty days, or whenever the abandonment of such obstruction can be legally established in a less space of time, the sunken vessel, boat, water craft, raft, or other obstruction shall be subject to be broken up, removed, sold, or otherwise disposed of by the Secretary of War at his discretion, without liability for any damage to the owners of the same: Provided, That in his discretion, the Secretary of War may cause reasonable notice of such obstruction of not less than thirty days, unless the legal abandonment of the obstruction can be established in a less time, to be given by publication, addressed "To whom it may concern," in a newspaper published nearest to the locality of the obstruction, requiring the removal thereof: And provided also, That the Secretary of War may, in his discretion, at or after the time of giving such notice, cause sealed proposals to be solicited by public advertisement, giving reasonable notice of not less than ten days, for the removal of such obstruction as soon as possible after the expiration of the above specified thirty days' notice, in case it has not in the meantime been so removed, these proposals and contracts, at his discretion, to be conditioned that such vessel, boat, water craft, raft, or other obstruction, and all cargo and property contained therein, shall become the property of the contractor, and the contract shall be awarded to the bidder making the proposition most advantageous to the United States: Provided, That such bidder shall give satisfactory security to execute the work: Provided further, That any money received from the sale of any such wreck, or from any contractor for the removal of wrecks, under this paragraph, shall be covered into the Treasury of the United States.

"SEC. 20. That under emergency, in the case of any vessel, boat, water craft, or raft, or other similar obstruction, sinking or grounding, or being unnecessarily delayed in any Government canal or lock, or in any navigable waters mentioned in section nineteen, in such manner as to stop, seriously interfere with, or specially endanger navigation, in the opinion of the Secretary of War, or any agent of the United States to whom the Secretary may delegate proper authority, the Secretary of War or any such agent shall have the right to take immediate possession of such boat, vessel, or other water craft, or raft, so far as to remove or to destroy it and to clear immediately the canal, lock, or navigable waters aforesaid of the obstruction thereby caused, using his best judgment to prevent any unnecessary injury; and no one shall interfere with or prevent such removal or destruction: Provided, That the officer or agent charged with the removal or destruction of an obstruction under this section may in his discretion give notice in writing to the owners of any such obstruction requiring them to remove it: And provided further, That the expense of removing any such obstruction as aforesaid shall be a charge against such craft and cargo; and if the owners thereof fail or refuse to reimburse the United States for such expense within thirty days after notification, then the officer or agent aforesaid may sell the craft or cargo, or any part thereof that may not have been destroyed in removal, and the proceeds of such sale shall be covered into the Treasury of the United States.

"Such sum of money as may be necessary to execute this section and the preceding section of this Act is hereby appropriated out of any money in the Treasury not otherwise appropriated, to be paid out on the requisition of the Secretary of War.

The proceedings by the engineer officer of the Government in respect to the steamer John B. Ketcham 2nd were had under section 20.

It seems unnecessary to answer your first question—as to the constitutionality of the provision of this section that the whole proceeds of the sale of a craft, or any part thereof that may not be destroyed in removal, shall be