Arkansas River Corp. v. U.S.

Decision Date14 November 1996
Docket NumberNo. 4:90CV240-D.,4:90CV240-D.
Citation947 F.Supp. 941
PartiesARKANSAS RIVER COMPANY, A Corporation, as Operator and/or Owner Pro Hac Vice of the M/V Greenville, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.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.

BENCH OPINION

DAVIDSON, District Judge.

This nonjury matter came to trial before the undersigned on September 9, 1996, in Aberdeen, Mississippi. The plaintiff Arkansas River Company ("ARC") brought suit against the defendant United States for damages due to the United States Army Corps of Engineers' ("Corps") alleged negligence in maintenance and design of the Emmett Sanders Lock and Dam on the Arkansas River ("Lock and Dam 4"). The defendant counter-claimed with an assertion of negligence and requested a sum sufficient to repair the damage done to Lock and Dam 4 when a tow under the control of Arkansas River allided with the lock and dam. This court has jurisdiction pursuant to Federal Rule of Civil Procedure 9(h) and the Suits in Admiralty Act, 46 U.S.C.App. §§ 740 et seq. ("SAA").1 The defendant's counter-claim is brought pursuant to 28 U.S.C. § 1345 and the Rivers and Harbors Act, 33 U.S.C. §§ 408, 412. The court sets out below its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

FACTUAL FINDINGS

ARC, a Mississippi corporation domiciled in Greenville, Mississippi, is the owner and operator of the M/V GREENVILLE ("GREENVILLE"), a 3800-horsepower towing vessel used to push2 barges on the inland waterways of the United States. Lock and Dam 4 is owned by the United States and operated by the Corps. It was constructed over forty (40) years ago at approximately mile 66.9 on the Arkansas River in the McClellan-Kerr Arkansas River Navigation Project. This System consists of seventeen locks, twelve in Arkansas and five in Oklahoma, with uniform chambers 110 feet wide by 600 feet long. The locks are operated twenty-four (24) hours a day, seven (7) days a week.

As it snakes southward, the Arkansas River gradually becomes more shallow. As a result, for navigational purposes, the water level is different above and below the lock. Generally, a downward bound tow will enter a lock with the downstream gates closed. Once the tow maneuvers into the lock, the upstream gates are closed and the water is released from the chamber until the level inside is equal to the downstream level. At that point, the downstream gates are opened and the tow proceeds downstream.

On April 22, 1990, the water flow rate at Lock and Dam 4 was 200,000 to 220,000 cubic feet per second ("CFS"). Upstream release of pool water attributed to the higher flow rate. That morning the M/V GREENVILLE, piloted by Captain Wayne Stricklin, was heading south on the Arkansas River and approached Lock and Dam 4 from the north. Approximately 200 TO 250 feet above the lock, the tow drifted into an outdraft in the river and became misaligned with the lock. An outdraft occurs when the normal downstream current of the river is somehow altered and an alternate current is created. The majority of the upstream approaches on the Arkansas River experience some sort of outdraft condition. The outdraft which occurred 250 feet upstream of Lock and Dam 4 was created by the shape of the right descending bank line. Part of the bank line thrust further out into the river, creating an obstacle around which the river current had to swirl. When the downstream current ran into that part of the bank, its kenetic force pushed it away from the bank and out into the river, creating a cross current or outdraft at that particular point in the river.

The GREENVILLE was towing eight (8) barges when the outdraft above Lock and Dam 4 caught it. The conditions of the current pushed the head of the tow to its port (left) side, while the tow's stern swung to the starboard (right) side. Captain Stricklin immediately began to back the tow and, as a result, the stern came in contact with the rock revetment on the right descending bank and the head of the tow struck the long wall or guide wall of Lock and Dam 4. The allision with the guide wall broke the tow up, sinking one barge and damaging several others.

ARC sued the United States alleging that the outdraft condition north of Lock and Dam 4 was a navigational hazard of which the Corps was aware, that the Corps had a duty to attempt to correct navigational hazards and that the Corps failed to take any action to alter or repair the right descending bank line upstream of Lock and Dam 4 prior to April 22, 1990. The United States responded by alleging that the negligence of Captain Stricklin caused the allision and that ARC owes the United States for the damages caused to the lock and dam by the GREENVILLE and its loosed barges. Furthermore, the United States submits that this court lacks jurisdiction over the plaintiff's claims pursuant to section 3 of the Flood Control Act of 1928, 33 U.S.C. § 702c, which immunizes the United States from liability for any damage resulting from river floodwaters or the operation of a flood control project. The United States also asserts that the discretionary function exception to the Federal Tort Claims Act ("FTCA") (28 U.S.C. § 2680(a)) precludes this court from exercising subject matter jurisdiction over the plaintiff's claims.

CONCLUSIONS OF LAW
I. MISSISSIPPI FLOOD CONTROL ACT OF 1928, 33 U.S.C. § 702c

The United States claims that it is immune from liability in this action due to the application of the Mississippi Flood Control Act of 1928. See 33 U.S.C. § 702c. That Act provides in relevant part that "[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place." Id. Although the Act pertains to flood control along the Mississippi River, its grant of immunity extends to all federal flood control projects nationwide. United States v. James, 478 U.S. 597, 610 n. 10, 106 S.Ct. 3116, 3123 n. 10, 92 L.Ed.2d 483 (1986); Arkansas River Co. v. United States, 840 F.Supp. 1103, 1106 (N.D.Miss.1993) (Davidson, J.). The court previously set out the relevant law concerning § 702c when it addressed the parties' pretrial motions. See Arkansas River, 840 F.Supp. at 1106-14. After a thorough discussion, this court noted which test it found to be proper when determining whether the Act's grant of immunity shielded the government from liability.

The court's understanding is that its inquiry should be focused on the operation, or not, of a flood control project for the maintenance of flood waters wherein some injury resulted to plaintiff. This is "the test", as discussed in James,3 that the court will apply until there is further clarification by the Supreme Court or the Fifth Circuit to the contrary.

Arkansas River, 840 F.Supp. at 1110 n. 10. Such clarification, either to the contrary or in affirmation, has not been forthcoming. Thus, the first query which this court must answer is whether the lock and dam serves a flood control role as a component of the McClellan-Kerr System, or whether its function is more narrowly defined as an instrument of passage for commercial river traffic. Arkansas River, 840 F.Supp. at 1113. Should the court find that Lock and Dam 4 operates as a federal flood control project, the court must then make a finding of causation before liability may attach to the United States. If the injury resulted "from or by floods or flood waters," the United States remains immune; if not, the shield is lifted.

As an aside, the court notes that the Act itself provides immunity "from or by floods or flood waters at any place," and does not limit its reach specifically to flood control projects. 33 U.S.C. § 702c (emphasis added). However, after interpreting the statute in light of its admittedly limited legislative history and the intent of Congress, this qualification was placed upon the United States by the courts, including the Fifth Circuit. Graci v. United States, 456 F.2d 20, 27 (5th Cir.1971); see also Peterson v. United States, 367 F.2d 271, 275 (9th Cir.1966). In Graci, the plaintiffs brought suit for property damage allegedly caused by the negligent construction of the Mississippi River-Gulf Outlet. Id. at 22. The United States conceded that the outlet was a navigation aid project, but argued that the Flood Control Act immunized it from the plaintiffs' claims for damages since the damages were incurred as the result of floodwaters. Id. The question facing the Fifth Circuit on appeal was whether § 702c afforded the government immunity from liability for floodwater damage unconnected with a flood control project. Id. at 23.

The Graci Court answered that query in the negative. "[W]hat little legislative history there is strongly support[s] the view that the purpose of § 3 [of the Flood Control Act] was to place a limit on the amount of money that Congress would spend in connection with flood control programs." Id. at 25. The court found it unreasonable to suppose that in exchange for entry into the flood control realm, the United States meant to provide a blanket of immunity for acts unconnected with flood control projects. Id. at 26. Relying upon these principles and the analysis utilized by sister circuits,4 the Fifth Circuit held that

§ 3 is not a bar to claims for floodwater damage caused by the negligence of the Government unconnected with flood control projects.

Id. at 27. Since that time, every Fifth Circuit opinion addressing immunity under § 702c has linked that statutory buffer together with the "flood control" prerequisite. Boudreau v. United States, 53 F.3d 81, 82 (5th Cir.1995) (holding Lake Lewisville to be flood control project), cert. denied, ___ U.S. ___, 116 S.Ct. 771, 133...

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