Arkansas River Co. v. US
| Decision Date | 13 October 1993 |
| Docket Number | Civ. A. No. GC-90-CV-240. |
| Parties | In the Matter of the Complaint of ARKANSAS RIVER COMPANY, a corporation, as operator and/or owner pro hac vice of the M/V Greenville, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Mississippi |
Ernest Lane III, William R. Striebeck, Greenville, MS, for Arkansas River Co.
Peter F. Frost, Dept. of Justice, Torts Branch, Civ. Div., Washington, DC, Jim Greenlee, Asst. U.S. Atty., Oxford, MS, for U.S.
Defendant, United States of America, has filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Despite the fact that the government has moved for judgment on the pleadings, it has attached exhibits and affidavits which it advances in support of its motion. Likewise, Arkansas River Company, plaintiff, calls the court's attention to various exhibits and affidavits which it submits in response to the government's motion. A motion for judgment on the pleadings is a self-descriptive motion which aptly explains that the court's inquiry is strictly limited to the pleadings. However, Rule 12(c) allows the court to treat the motion as one for summary judgment when matters outside the pleadings are presented and not excluded by the court.
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
This court will consider the exhibits and affidavits which the parties have submitted in the case sub judice. Hence, the government's motion will be evaluated as one for summary judgment under Rule 56.1 As such, the court finds genuine issues of material fact, and the motion will be denied for the reasons explained in this memorandum opinion.
On April 22, 1990, the M/V Greenville and her tow of eight loaded grain barges were proceeding southbound on the Arkansas River at approximately Mile 66.9, and were about to enter Lock 4 in the Pine Bluff, Arkansas, region. At approximately 11:00 a.m., an outdraft (river current pushing from the right descending bank toward the left descending bank) caused the head of the Greenville's tow to be pushed to its port side with the stern of the tow being pushed to its starboard side. As a result, the stern of the Greenville's tow came into contact with a rock revetment causing the tow to strike the long wall on Lock 4. Arkansas River alleges that it sustained damages in an amount exceeding $800,000.00. The United States has a countersuit claiming damages of approximately $250,000.00 in damage to Lock and Dam 4.
Lock and Dam 4 is owned and operated by the United States government by and through the United States Corps of Engineers. Lock and Dam 4 is named the Emmett Sanders Lock and Dam, and it is part of the McClellan-Kerr Arkansas River Navigation System which consists of seventeen locks in the McClellan-Kerr Arkansas Navigational System with twelve locks in Arkansas and five in Oklahoma. All lock chambers are one hundred and ten (110) feet wide by six hundred (600) feet long and are operated twenty-four (24) hours a day seven days a week.
The Arkansas River gets shallower as it proceeds south, and there is a difference in the water level above and below the lock. Typically, a downward bound vessel will enter the lock with the downstream gates closed. After the vessel and her tow are secured in the lock, the upstream gates are closed. The water in the lock is then slowly released until the water level is approximately equal to the downstream water level. At that time, the downstream gates are opened and the tow is allowed to proceed downstream.
Arkansas River asserts that Lock 4 (Emmett Sanders) is merely a navigational lock and serves no purpose for flood control along the Arkansas River — a point which the government adamantly contests. According to the plaintiff, the allision was caused by the defective design of the lock and a total lack of maintenance on the part of the Corps of Engineers, including the failure to remove a rock point approximately one hundred and twenty-five (125) to one hundred and fifty (150) feet north of the entrance to the lock chamber. As explained in their memorandum brief, Arkansas River describes the Corps' negligence as follows:
Both the long wall and the entrance to the lock are defectively designed and maintained, which causes a severe outdraft, which outdraft is a hazard to navigation and causes vessels and their tows to be pulled from the correct navigational path. Defendant United States has known of these design defects for many years and it has failed to properly maintain the entranceway to the lock chamber, even though numerous complaints have been filed by commercial towing interests. There have been numerous accidents at Lock and Dam 4, which were caused by the outdraft. Even though there have been 23 outdraft related accidents at Lock 4, the Corps of Engineers has failed to maintain the entranceway and its negligence in its failure to maintain the entranceway was the proximate cause of the allision. But for the negligence of the United States in its failure to use due care in maintaining the entranceway, the allision would not have occurred. Such inaction, after notice, was negligence in the grossest manner by the United States.
To support Arkansas River's assertions of the accident history at this particular location, the company has submitted a study performed by the Corps of Engineers. The study discusses the accident history at the Emmett Sanders Lock and Dam.
The eight locks and dams had a total of 97 accidents upstream of their upstream miter gate. The results show that 23 of the total of 97 outdraft related accidents have occurred at Emmett Sanders Lock and Dam. The 97 accidents have resulted in a total of six barges sinking in front of the spillways, and three of the six barge sinkings occurred at Emmett Sanders Lock and Dam. One of the barges that sank at Emmett Sanders Lock and Dam was an oil barge and this resulted in a major spill and clean-up effort. The 97 accidents have resulted in a total of 49 barges getting into the spillway areas and 21 of these, or approximately 43%, have occurred at Emmett Sanders Lock and Dam. These numbers indicate that of the eight locks and dams studied, the navigation conditions at the upstream lock approach to Emmett Sanders Lock and Dam are the most difficult to navigate.
The government relies upon two "defenses" which it asserts as a bar to suit. First of all, the government argues that plaintiff's complaint is barred by 33 U.S.C. § 702c, which precludes suits against the United States for damage caused by flood waters. As a fall-back position, the government alleges that the action is barred by the discretionary function exception to the Suits in Admiralty Act's waiver of sovereign immunity, 46 U.S.C. § 741-752. Upon careful consideration by the position asserted by the defendant, the undersigned is not convinced that as a matter of law, the government is entitled to judgment at this stage. However, before examining the merits of the government's defense, the court takes notice of the standard for summary judgment which is familiar and well-settled.
Summary judgment is appropriate only if the record reveals that there is no genuine issue of any material fact, and the moving party is entitled to judgment as a matter of law. F.R.C.P. 56(c). The pleadings, depositions, admissions, answers to interrogatories, together with any affidavits, must demonstrate that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Federal Sav. and Loan Ins. v. Kralj, 968 F.2d 500, 503 (5th Cir.1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). However, summary judgment is mandated after adequate discovery and upon proper motion against a party who fails to make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552.
The Mississippi Flood Control Act of 1928 is placed in issue in the case sub judice. In a nutshell, numerous courts have traditionally held that no liability attaches to the government for any damage from floods or flood waters. The logical and natural extension of this premise is that no liability attaches to functions which are the result of flood control projects.2 Section 3 of the Mississippi Flood Control Act, which is codified at 33 U.S.C. § 702c, furnishes the rule of "no liability" and is set forth below:
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