Livingston v. U.S.

• Decision Date: 13 August 1980
• Docket Number: No. 79-1877,79-1877
• Citation: 627 F.2d 165
• Parties: Jane O. LIVINGSTON, Administratrix of the Estate of Haldon C. Livingston, Deceased, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 165

627 F.2d 165

Jane O. LIVINGSTON, Administratrix of the Estate of Haldon C. Livingston, Deceased, Appellee, v. UNITED STATES of America, Appellant.

No. 79-1877.

United States Court of Appeals Eighth Circuit.

Submitted May 23, 1980.

Decided Aug. 13, 1980.

Marc Richman, Atty., App. Staff, Civil Division, Dept. of Justice, Washington, D. C., argued, Alice Daniel, Asst. Atty. Gen., Washington, D. C., Larry R. McCord, U. S. Atty., Fort Smith, Ark., Leonard Schaitman, Marc Richman, Thomas L. Jones and Thomas W. Snook, Washington, D. C., on brief, for appellant.

Sidney S. McMath, Little Rock, Ark., argued, Sidney S. McMath, Little Rock, Ark., and Irene J. Barnes, Washington, D. C., on brief, for appellee.

Before LAY, Chief Judge, and BRIGHT and HENLEY, Circuit Judges.

BRIGHT, Circuit Judge.

The United States brings this appeal from a judgment of the district court, sitting in admiralty. The district court found the United States eighty percent responsible for a boating accident that resulted in the death of Haldon Livingston, and it awarded damages of $192,800 to Livingston's estate. On appeal, the United States argues chiefly that the district court lacked admiralty jurisdiction because the accident occurred on waters that, though once used for commercial shipping, are no longer navigable in fact. We agree that admiralty jurisdiction was improperly invoked in this case and therefore reverse.

I. Background.

A. The Accident.

Haldon Livingston, appellee's decedent, drowned in the Norfork River in north central Arkansas on June 13, 1974, while fishing downstream from the Norfork hydroelectric dam. Mr. Livingston was forty-four years old. The United States, through the Army Corps of Engineers, owns the dam, the river, and both banks in the area of the accident.

The Livingstons and their friends, the Emens, had been staying at a public campsite on the banks of the Norfork for several days prior to the accident. They had rented a flat-bottomed fishing boat approximately sixteen feet long and had attached to it a small outboard motor. On the evening of the accident, Haldon Livingston, together with his twelve-year-old daughter, Margaret, and fourteen-year-old Jimmy Emens, decided to motor upstream to do some more fishing. Approximately 300 feet upstream from their campsite, opposite a boat ramp maintained by the Corps of Engineers, they passed a pole in the middle of the stream. Some thirty feet beyond this pole, Mr. Livingston shut off the motor and the boat began to float downstream. At that time, because the dam's generators had been running, the river was about 200 feet wide and 4 feet deep, with a 4 m.p.h. current.

Before Mr. Livingston or his passengers could cast their fishing lines, the bow of their boat struck a one-inch diameter steel cable. The cable was attached to the top of a twelve-foot post on the east bank of the river and angled downstream into the river about twenty feet from the bank, where it became lodged in the riverbed. The boat slipped beneath the cable and, under the force of the current, it began to submerge. The two children were able to get around the cable as the boat went under it. Somehow, though, Mr. Livingston became wedged between the cable and the back or seat of the boat, and both he and the boat were forced down to the bottom of the river. The children managed to swim to the east bank. Attempts of bystanders to rescue Mr. Livingston were unavailing.

The post on the east bank and the cable were remnants of a temporary bridge built in the 1940's by the prime contractor building the dam. The prime contractor removed the bridge in 1945, when the dam was completed, but left the post on the east bank and the cable. Neither served any useful purpose thereafter. The pole in the middle of the river near the accident had been placed there in 1945 to hold a sign warning boaters not to go further upstream because of construction. This sign disappeared in 1947 and was never replaced. There was thus no sign warning boaters about the cable, even though (as the appellee proved) the Corps of Engineers knew of at least one prior boating mishap involving the cable. While the cable was visible, the district court found that both it and the post on the east bank could be easily overlooked.

B. The Proceedings in the District Court.

Mrs. Livingston, as administratrix of her husband's estate, brought two wrongful death actions against the United States. One action invoked the court's admiralty jurisdiction under 28 U.S.C. § 1333(1) (1976) and claimed liability under 46 U.S.C. § 742 (1976); the other action sought relief under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680 (1976). These actions were consolidated for trial.

In her FTCA action Mrs. Livingston alleged that, under applicable state law, the United States was liable as a landowner for its negligence towards her husband. ¹ The district court held, however, that Mrs. Livingston had failed to prove what it determined to be the requisite degree of negligence viz., willful or malicious failure to guard or to warn against a dangerous condition. Mrs. Livingston has not appealed this holding. Thus, only the district court's judgment in the admiralty action is before us on appeal.

Mrs. Livingston's admiralty action, unlike her FTCA claim, necessarily proceeds upon the assumption that the Norfork River is navigable. ² The district court, addressing this jurisdictional question at the outset of its analysis, determined that the Norfork must be considered currently navigable in light of its historic commercial uses. The district court proceeded to find on the merits that the failure of the United States to guard or warn against the cable, when it knew of the dangers the cable posed to those using the river, constituted a breach of its duty to use ordinary care. The court found further that Mr. Livingston's negligence was small compared to that of the United States. Accordingly, the court concluded that his estate should have damages.

C. The Norfork River: A Historic and Geographical Sketch.

In its natural state, the Norfork River was a small stream approximately 115 miles long, running south from Howell County, Missouri, to Norfork, Arkansas. There the Norfork empties into the White River, which in turn flows into the Mississippi.

Throughout the nineteenth century, settlers floated mineral products, fur pelts, and logs down the Norfork to its confluence with the White River. These products were then loaded onto barges or steamboats for transportation to the Mississippi River. After the arrival of the railroad in 1907, the settlement at the mouth of the Norfork began to thrive as logging flourished. Logging was carried on along the banks of the Norfork as far upstream as Hudson Mill, Missouri. Loggers who had gone upstream built rafts of logs twenty feet wide and up to a quarter-mile long, to be floated downstream when the fall and spring rains came.

The district court found that this logging traffic was neither insignificant nor spasmodic. Between 1900 and 1930, several rafts of logs came into the settlement of Norfork every week when the river was high enough. Farmers in the area also used the Norfork commercially. In the summer months they harvested mussel shells some twenty miles upstream from Norfork and loaded them into large flat-bottomed boats. When full, these boats were floated down to Norfork, and the mussels were then shipped by railroad to a button factory in Batesville, Arkansas. Trapping upstream along the Norfork remained a lucrative business for farmers during the winter.

By 1941, however, the only traffic on the Norfork consisted of fishermen and their guides, plus an occasional raft of logs. Arrival of the automobile, improvement of local roads, extension of railroad service, and diminished demand for and supply of traditional products all conspired to decimate commercial activity on the Norfork. Indeed, the Army Corps of Engineers issued a report in 1933 declaring the Norfork River nonnavigable. Notwithstanding this report, the district court found that there was sufficient evidence of historic commercial use of the river to consider it navigable when construction of the dam on the Norfork began in 1941.

The dam has greatly changed the character of the Norfork River. Above the dam now is Lake Norfork; below, what remains of the Norfork River runs for about three and one-half miles to the White River. The dam completely blocks travel between the river and the lake. When the dam's generators are not running, the river is very shallow, making it impossible to travel by boat without portaging in some areas. The river does rise substantially when the generators are running. Nonetheless, traffic on the river now consists almost exclusively of small skiffs used for recreational fishing.

II. Analysis.

In relying upon its history of commercial use to establish the present navigability of the Norfork River, the district court acted in accordance with language found in two decisions of this court suggesting that a river once navigable is always so. In George v. Beavark, Inc., 402 F.2d 977, 978 (8th Cir. 1968), we stated that "(i)f the river was navigable prior to construction of the dam, it continues to be considered as a navigable stream." ³ And in Loc-Wood Boat & Motors v. Rockwell, 245 F.2d 306 (8th Cir. 1957), this court sustained the assertion of federal admiralty jurisdiction over a tort occurring on the Lake of the Ozarks, a lake wholly within Missouri formed by the damming of the Osage River. The district court in that case had found the lake navigable because of the historic navigability of the Osage River and the continuing authority of federal agencies over vessels plying the lake. In re Wood's Petition, 145 F.Supp. 848, 854 (W.D.Mo.1956).

In neither George v. Beavark, Inc. nor Loc-Wood Boat & Motors, however, was this court squarely faced with the question of whether current...