Arkansas River Co. v. CSX Transp.

• Citation: 780 F. Supp. 1138
• Decision Date: 25 April 1991
• Docket Number: Civ. A. No. C90-0024-P(J).
• Parties: ARKANSAS RIVER COMPANY, Plaintiff, v. CSX TRANSPORTATION, and United States of America, Defendants.
• Court: U.S. District Court — Western District of Kentucky

780 F. Supp. 1138

ARKANSAS RIVER COMPANY, Plaintiff, v. CSX TRANSPORTATION, and United States of America, Defendants.

Civ. A. No. C90-0024-P(J).

United States District Court, W.D. Kentucky, Paducah Division.

April 25, 1991.

Ernest Lane, III, Greenville, Miss., Mark C. Whitlow, Whitlow, Roberts, Houston & Russell, Paducah, Ky., for Arkansas River Co.

John E. Wells, IV, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for U.S.

E. Spivey Gault, Lake, Tindall, Hunger & Thackston, Paducah, Ky., for CSX Transp.

MEMORANDUM OPINION

JOHNSTONE, District Judge.

On the night of December 10, 1986 at Mile 79.6 on the Green River, the M/V MARY ANN HARBISON and its tow struck the Smallhaus Bridge. The bridge is protected by concrete piers encased in steel rubbing beams commonly known as a "fender system." The fender system protects the bridge from damage due to marine traffic and is designated as an "aid to navigation" on all navigational charts and blue prints of the United States of America. At the time of the accident, the Harbison was under the command of Capt. Charlie T. Brown who had worked on the Green River for approximately five years. The Harbison was his regular boat and he was familiar with its operating characteristics. The Harbison's tow was four loaded coal barges drawing 8½' to 9' of water with approximately 3' of freeboard.

Since there was no radio communication at the bridge a determination whether the bridge was open or closed could not be made until rounding the bend. This situation was complicated by the fact that the bridge was located in a "blind bend." A tow was upon the bridge immediately after rounding the bend. This made it dangerous, if not impossible, to drive the bend and required that a downbound vessel "flank" the bend. A vessel flanks a bend by reversing its engines and pointing the stern slightly toward the bank on the inside of the bend allowing the pilot to control of the tow while the current carries it around the bend.

Normal pool elevation on this stretch of the Green River is 9.0' (366 feet Mean Sea Level) and flood stage is 23.9'. At the time of the accident, the river stage was 18.7' (377 feet M.S.L.), 4.1' above the previous day's reading and 1.3' above the last reading taken 9 hours earlier. Horizontal clearance through the channel span of the bridge is 110 feet and the Harbison's tow was approximately 70 feet wide.

Capt. Brown was aware of these rising river conditions as he proceeded downbound full ahead from Mile 85 or 86 until he reached Mile 81, approximately 1½ miles above the bridge. There he set up to "flank" the bend. When the tow drifted around the bend and into position, Capt. Brown pushed both sticks full ahead intending to drive through the channel span. However, the starboard engine failed to respond. The tow set over to starboard and laid up against the fender system. The initial impact was so slight that people standing in the wheelhouse did not lose their balance. As the vessel began to slide through, the protruding, jagged steel members of the fender system holed and "grabbed" the starboard stern barge. The tow broke up and the port stern barge struck the left channel pier displacing it approximately 22 inches. Although all the barges were recovered downstream, the starboard stern barge later sank at its mooring.

The Harbison was owned by Arkansas River Company, the bridge was owned by CSX Transportation, and the fender system was constructed and maintained by the United States of America. Arkansas River sued the U.S. for damage to the barges, and CSX sued the U.S. for damage to the bridge. The U.S. counterclaimed against Arkansas River for damage to the fender system. The stipulated cost of repairs to the Smallhaus Bridge is $150,000.00. The stipulated damage incurred by Arkansas River Company for repairs, salvage, survey fees and lost cargo is $80,741.49.

The U.S. claims its decisions regarding the maintenance and inspection of the fender system are discretionary and fall within an exception to the United States' waiver of sovereign immunity in the Federal Tort Claims Act. This exception has been incorporated into the Suits in Admiralty Act. In re Ohio River Disaster Litigation, 862 F.2d 1237 (6th Cir.1988). If a case falls within the exception, the Court lacks subject matter jurisdiction and the case must be dismissed. Myslakowski v. United States, 806 F.2d 94 (6th Cir.1986).

The discretionary function exception provides that the U.S. shall not be liable for "any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function...." 28 U.S.C. 2680. Since every action or inaction by the government involves some exercise of discretion, a planning/operational distinction has been articulated to determine whether the action falls within the exception. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); In re Ohio River Disaster Litigation, 862 F.2d 1237 (6th Cir.1988). Planning decisions, which involve questions of policy, and the evaluation of the financial, political, economic and social effects of a given policy, are immune from judicial scrutiny. On the other hand, operational decisions, which involve the normal day-by-day operations of the government, are subject to judicial scrutiny. Complaint of Walker's Midstream Fuel, 636 F.Supp. 339 (W.D.Ky. 1986). The basic inquiry is whether the challenged acts are of the nature and quality that Congress intended to shield from liability. U.S. v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

Decisions regarding inspection can either be planning or operational decisions. Varig Airlines, 104 S.Ct. at 2755; In re Ohio River Disaster Litigation, 862 F.2d 1237 (6th Cir.1988); Complaint of Valley Towing Service, 609 F.Supp. 298 (D.C.Mo.1985). In Varig Airlines, plaintiffs were injured in an airplane fire. The Federal Aviation Administration had instituted a compliance review procedure to insure airplane manufacturers complied with the safety regulations. This procedure included a "spot check" inspection program. Plaintiff claimed that the "spot check" inspection program should include more frequent inspections. The Court found that the frequency with which to inspect was a policy decision and immune reasoning that "when an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind." Varig Airlines, 104 S.Ct. at 2767.

This holding was followed in the Complaint of Valley Towing Service. There a boat ran into a bridge on which vertical lights marked the underlying channel span as required by the regulations. Since the bridge was maintained by the state of Missouri, the state had retained the duty of insuring compliance with the regulations. The Coast Guard was responsible for policing compliance and inspected the bridge approximately twice monthly. When the Coast Guard discovered that one of the lights was not working, it notified the state and broadcast a warning to navigators. It was undisputed that the Coast Guard followed their established inspection policy, Plaintiff merely alleged that more frequent inspections were needed. The Court, following Varig Airlines, found that the frequency of inspection in a compliance review is a policy decision and immune.

However, in In re Ohio River Disaster Litigation, the owners of property damaged by the rush of water after ice jams broke sued the United States for the negligence of the Army Corp of Engineers. The Court found that the failure to restrict the flow, the failure to coordinate ice passing activities between dams, and the failure to compensate for the immobilization for the submergible tainter gates were policy decisions and immune. However, the failure to conduct periodic inspections, replace a...