Charles T. Clifford, Valparaiso, Ind. Smith, Timothy Kelly, Hammond, Ind. Belknap, Barnes and Thornburg, Indianapolis, Ind. On Monday, December 1, , a bench trial commenced in this action brought by plaintiff Indiana Port Commission against defendant Bethlehem Steel Corporation and intervenor-defendant Lake Carriers' Association. All parties were represented by counsel.
M/V Burns Harbor
Having examined the entire record and having determined the credibility of witnesses after viewing their demeanor and considering their interests, the court hereby renders the following Findings of Fact and conclusions of Law pursuant to Fed. This action involves the collection of fees for the use of a harbor under the jurisdiction of the Indiana Port Commission IPC.
The case has a lengthy history which is set out in the District Court opinion at F. The following facts, as previously revealed by the Seventh Circuit Court of Appeals, are supported by the trial evidence or by stipulation of the parties:. On appeal, the grant of summary judgment was reversed on the grounds that Bethlehem Steel had not been given a meaningful opportunity to challenge the IPC's summary judgment motion.
In when IPC, Bethlehem Steel, and the Midwest Division of National Steel agreed to construct the Harbor adjacent to parcels of land already owned by Bethlehem and National, it was not known whether the federal government would reimburse the IPC for any of its expenditures.
As stated above, Bethlehem constructed part of the Harbor entrance, the bulkhead at the east end the Bethlehem side of the Harbor, the east deflector well, and riparian enclosure walls. National constructed a bulkhead on its property the west end. The IPC used state-appropriated funds a to dredge the outer harbor, including the entrance channel; b to construct the outer breakwaters; and c to construct the public terminal facility.
The IPC also contributed the land under the outer Harbor itself and under the breakwaters and committed a acre site for future dredge spoils disposal. The United States reimbursed the IPC for the expenses of a dredging the outer Harbor, the entrance channel, and the east and west harbor areas, excluding the berthing areas; and b constructing the outer breakwaters. The United States accepted the outer Harbor, the east and west harbor arms and the outer breakwaters as part of an authorized federal project and assumed the expense of maintaining and repairing these portions of the Harbor.
In , the Burns Harbor Waterway opened and the IPC began charging the HSC, at a rate of one cent per gross registered ton, on all "commercial vessels entering the physical limit" of the Harbor regardless of whether the vessel used the IPC's public terminal facility. The following categories of vessels were exempt from the HSC except that the IPC reserved the right to charge them for services actually rendered: vessels which enter the Harbor solely to refuel, resupply or change pilots and remain for less than 24 hours; vessels which neither receive nor discharge cargo and remain for less than twelve hours; government vessels not carrying cargo, troops, or supplies; and vessels using the Harbor as a harbor of refuge.
The IPC does not provide pilotage services for vessels entering the Harbor. Nor does the IPC provide Bethlehem, or other ships entering the Harbor, with accommodations for wharfing or for handling or stowing goods. The IPC does not supervise shipping, provide services to prevent collisions and fires, police the Harbor, or aid in extinguishing fires in vessels in the Harbor.
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The IPC's unreimbursed expenses include a portion of the funds for constructing an access road to the Harbor during construction and dredging and constructing a rubble mound retaining wall to protect the Harbor from erosion of the riparian fill area of the public port site. However, Bethlehem has borne comparable unreimbursed expenses in constructing its own dock wall and dredging the adjacent berthing area. These unreimbursed expenditures only incidentally benefit all users of the port but primarily serve to benefit the users of the respective docks. The IPC is in a position to impose the HSC only by virtue of its sovereignty and not because of any claimed right of proprietorship in facilities such as wharves or locks.
The IPC's expenditure which only incidentally benefits users of the Harbor, cannot be accurately characterized as assistance rendered or facilities furnished by the State to vessels using the Harbor. The federal government, and not the IPC, owns the outer breakwater walls and the land beneath them. In addition the federal government holds a perpetual right-of-way easement over the lands beneath the outer Harbor, the entrance channel, and the east and west Harbor arms, excluding the berthing areas. The federal government has the corresponding responsibilities for maintenance, repairs, and supervision of the Harbor.
The Harbor, as distinct from IPC's public terminal facility, was constructed at an expense that was principally borne by the federal government. In exchange for the United States reimbursing the State of Indiana for part of the cost for the Harbor and public terminal construction, the State of Indiana and the federal government agreed that the work paid for by these funds would be carried out under the supervision of the Army Corps of Engineers and that the federal government would accept that part of the project as part of an authorized federal project and would pay maintenance and repair expenses for the portion of the project it accepted and funded.
Pursuant to the agreement, the federal government received a deed for fee simple title to the land around the outer breakwaters and a perpetual right-of-way easement for the use of the outer Harbor. The United States reimbursed the State of Indiana for nearly all of the costs of the Harbor, as distinguished from the public terminal facility for which the State of Indiana absorbed the cost.
Although the State of Indiana retained the bare legal title to the bed underlying the Harbor, the real and beneficial uses of the Harbor belong to the federal government which has the fee simple deed to the land around the outer breakwaters, perpetual right-of-way easement for the use of the outer Harbor, and responsibility for regulation and supervision of the Harbor. In this sense, the navigational improvement, although not the bed underlying it, "belongs to" the United States.
The Reimbursement Agreement for Harbor Construction and Dredging between the United States Government and the State of Indiana provides that the United States would reimburse the State for the total cost of constructing the West Outer Bulkhead, the North Breakwater and the total cost of dredging the West Harbor Arm, the East Harbor Arm, the Outer Harbor, and the Entrance channel excluding berthing areas and facilities to retain dredged material in the disposal area. Although the State agreed to complete the Harbor project, it agreed that the federal government would fund the project, and the State agreed to complete the Harbor under the supervision of the U.
Army Corps of Engineers' Chief of Engineers. These service charges were calculated based on an estimate of Cargill's usage. This amount, under any form of payment, would have covered the full HSC and other service charges owed by Cargill. The tariff imposing the HSC specifies that "[e]very vessel by its master or agent shall pay" the HSC on presentation of an invoice. The IPC has interpreted this tariff to allow it to collect the HSC from Bethlehem for all vessels calling at Bethlehem's port, regardless of whether Bethlehem owns the vessel.
Bethlehem disclaims HSC liability for vessels that it neither owns nor operates. The vessels calling at Bethlehem's dock are common carrier barges owned and operated by independent barge line operators hauling products for Bethlehem. Nor does Bethlehem have the right to control the details, manner, or particular method of performing the delivery and hauling tasks. Bethlehem asserts that the State of Indiana agreed, as a condition of federal funding, not to charge vessels for the privilege of entering the Harbor. This argument is essentially the estoppel defense which the court has previously disallowed because it was not timely raised in this case.
See Court Order dated September 26, The court refused to allow Bethlehem to amend its complaint to add the defense that [b]y reason of the acts of Congress in reliance on such representations that the State would not charge for mere entry into the Harbor , plaintiff is now estopped from seeking to impose on vessels entering the Harbor a harbor service charge for the use of the Harbor. Tonnage duties are taxes or tolls measured by tonnage and imposed on vessels that are instruments of commerce.
Cox v. Lott, 79 U. Thus, the prohibition against a duty of tonnage forbids "all taxes and duties regardless of their manner or form, and even though not measured by the tonnage of the vessels which operate to impose a charge for the privilege of entering, trading in, or lying in a port. The U. Supreme Court distinguishes tonnage duties from other fees charged by state authorities "for services rendered to and enjoyed by the vessel," such as pilotage, wharfage, charges for the use of locks on a navigable river, or fees for medical inspection. Clyde Mallory Lines, U. To determine whether a charge is a duty of tonnage within the meaning of the Constitution, one must consider the essence and the object of the charge.
If the essence of the charge is a duty for the privilege of entering the port imposed by authority of the State, it is a constitutionally prohibited duty of tonnage. If it is a charge for services rendered or conveniences provided, it is not a duty of tonnage. Packet Co. Keokuk, 95 U. It is not a charge for services rendered or convenience provided by the State. The State of Indiana, through the IPC, may charge vessels for wharfing at the public terminal or for other services it provides but may not charge for merely entering, trading in, or lying in the Harbor, which is operated and was improved, for all practical purposes, by the federal government.
Although this court's conclusion that the HSC is a constitutionally proscribed duty of tonnage disposes of the case, the court will address the remaining issues to provide a more complete record. Although it has previously been held in this case that this statutory proscription "was not addressing the power of the States" to levy tolls, F.
Where the meaning of terms in a statute are unambiguous, the statutory analysis begins and ends with the language of the statute itself unless there is persuasive reason to the contrary. Graczyk v. The plan would be carri out in , but the new company did not take the "Bethlehem Steel and Shipbuilding Company" name.
Instead, the new company took the name Bethlehem Steel Corporation. In , the Bethlehem Steel Corporation was formed, this is the new company replacing the United States Shipbuilding Company ; the new company did not use the name "Bethlehem Steel and Shipbuilding Company". Schwab became the first president and first chairman of its board of directors of the Bethlehem Steel Corporation. The Bethlehem Steel Corporation became the second largest steel provider in the United States with the help of the subsidiary Bethlehem Steel Company which was the first Bethlehem Steel.
The Bethlehem Steel Corporation installed the gray rolling mill and producing the first wide-flange structural shapes to be made in America. These shapes were partly responsible for ushering in the age of the skyscraper and establishing Bethlehem Steel as the leading supplier of steel to the construction industry. In the early s, the corporation branched out from steel, with iron mines in Cuba and shipyards around the country. In , it acquired the Fore River Shipbuilding Company of Quincy, Massachusetts , thereby assuming the role of one of the world's major shipbuilders.
Indiana Port Com'n v. Bethlehem Steel Corp., 653 F. Supp. 604 (N.D. Ind. 1987)
In , it incorporated its shipbuilding division as Bethlehem Shipbuilding Corporation , Limited. In , it purchased the Lackawanna Steel Company , which included the Delaware, Lackawanna and Western Railroad as well as extensive coal holdings. During World War II, as much as 70 percent of airplane cylinder forgings, one-quarter of the armor plate for warships, and one-third of the big cannon forgings for the U. S armed forces were turned out by Bethlehem Steel. Bethlehem Steel ranked seventh among United States corporations in the value of wartime production contracts.
Navy's two-ocean fleet. It employed as many as , persons, the bulk of the company's total employment of , Eugene Grace was president of Bethlehem Steel from to , and chairman of the board from until his retirement in Eugene Grace orchestrated Bethlehem Steel's wartime efforts. In , he promised President Roosevelt one ship per day, and exceeded the commitment by 15 ships.
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The war effort drained Bethlehem of much of its male workforce. The company hired female employees to guard and work on the factory floor or in the company offices. After the war, the female workers were promptly fired in favor of their male counterparts. When peacetime came, the plant continued to supply a wide variety of structural shapes for the construction trades. Additionally, the company produced forged products for defense, power generation, and steel-producing companies.
From to , Bethlehem Steel had a contract with the federal government of the United States to roll uranium fuel rods for nuclear reactors in Bethlehem Steel's Lackawanna, New York , plant. Workers were not aware of the dangers of the heavy metals they were rolling and were not given protective equipment. Some workers have since attempted to receive compensation under a year radiation-exposure law. The Bethlehem Steel workers have not been awarded this compensation because the radiation dose involved in processing fresh uranium fuel is low, and produces a small risk relative to the baseline risk.
The steel industry in the U. Bethlehem Steel's high point came in the s, as the company began manufacturing 23 million tons per year. In , the company's president, Arthur B. Homer, was the highest-paid U. The firm built its largest plant, at Burns Harbor, Indiana , between and The late s offered a harbinger of the troubled times to come.
In , the company lost its bid to provide the steel for the original World Trade Center. The contracts, a single one of which was for 50, tons of steel, went to competitors in Seattle, St. Louis, New York and Illinois. The U. But eventually, the foreign firms were rebuilt with modern techniques such as continuous casting , while profitable U. Bethlehem experimented with continuous casting but never fully adopted the practice.
Meanwhile, the average age of the Bethlehem workforce was increasing, and the ratio of retirees to workers was rising, meaning that the value created by each worker had to cover a greater portion of pension costs than before. Former top manager Eugene Grace had failed to adequately invest in the company's pension plans during the s. When the company was at its peak, the pension payments that should have been made were not.
As a result, the company encountered difficulty when it faced rising pension costs and diminishing profits. By the s, imported foreign steel was generally cheaper than domestically produced steel. Profitability returned briefly in , but restructuring and shutdowns continued through the s. In the mids, demand for the plant's structural products began to diminish, and new competition entered the marketplace.
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Lighter construction styles, in part due to lower-height construction styles i. Bethlehem Steel exited the railroad car business in At the end of , it closed steel-making at the main Bethlehem plant. After roughly years of metal production at its Bethlehem, Pennsylvania plant, Bethlehem Steel Corporation ceased its Bethlehem operations. The Bethlehem Steel Corporation ceased shipbuilding activities in in an attempt to preserve its steel-making operations.
The Bethlehem Steel Corporation would file for bankruptcy in and dissolve in Despite the closing of its local operations, the Bethlehem Steel Corporation tried to reduce the impact on the Lehigh Valley area with plans to revitalize the south side of Bethlehem. It hired consultants to develop conceptual plans on the reuse of the massive property. Inexpensive steel imports and the failure of management to innovate, embrace technology, and improve labor conditions contributed to Bethlehem Steel's demise. It led to a class action lawsuit filed by the workers union soon thereafter.
In , the Bethlehem Steel Corporation filed for bankruptcy. Since the Bethlehem Steel Corporation was dissolved instead of being merged into International Steel Group, the former company is not part of the former International Steel Group heritage, the former Mittal Steel's heritage and the current ArcelorMittal's heritage. In , the Bethlehem property was sold to Sands BethWorks , and plans to build a casino where the plant once stood were drafted. Construction began in fall ; the casino was completed in Ironically, the casino had difficulty finding structural steel for construction due to a global steel shortage and pressure to build Pennsylvania's tax-generating casinos.
The site of the company's original plant in Bethlehem, Pennsylvania, is home to SteelStacks, an arts and entertainment district. The plant's five blast furnaces were left standing and serve as a backdrop for the new campus. In , Bethlehem Steel , a three-piece indie rock band, named itself after the company to honor it. On November 9, , a warehouse being used as a recycling facility that was part of the Lackawanna, New York, Bethlehem Steel Complex caught fire and burned down.
On May 19, , the former Bethlehem Steel headquarters building in the west side of Bethlehem was imploded. From to , Bethlehem Steel was one of the world's leading producers of railroad freight cars through their purchase of the former Midvale Steel and Ordnance Company , whose railcar division was at Johnstown, Pennsylvania. Despite its status as a major integrated steel maker, Bethlehem Steel Freight Car Division pioneered the use of aluminum in freight car construction.
The Johnstown plant was purchased from Bethlehem Steel through a management buyout in , creating Johnstown America Industries. Bethlehem Steel fabricated the largest electric generator shaft in the world, produced for General Electric in the s. It also supplied the steel used for the Wonder Wheel in Coney Island. Bethlehem Steel Corporation's flagship manufacturing facility in Bethlehem, Pennsylvania. The Sparrows Point Industrial Complex, one of Bethlehem's primary steel making and shipbuilding plants. From Wikipedia, the free encyclopedia. For the current soccer club, see Bethlehem Steel FC.
For the early 20th century American soccer club, see Bethlehem Steel F. For the Brooklyn based indie rock band, see Bethlehem Steel band. This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed.