Ohio River Disaster Litigation, In re, B-R

• Decision Date: 28 February 1989
• Docket Number: Nos. 85-3990,B-R,85-4036 and 86-3216,s. 85-3990
• Citation: 862 F.2d 1237
• Parties: In re OHIO RIVER DISASTER LITIGATION. COMPLAINT OF WALKER TOWING CORPORATION; Petition ofRiver Services, Inc., Plaintiffs-Appellees, Plaintiffs-Appellants (86-3216).RIVER SERVICES, INC., Cross-Appellant (85-4036), v. UNITED STATES of America, Defendant-Appellant (85-3990), Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1237

862 F.2d 1237

1989 A.M.C. 2040

In re OHIO RIVER DISASTER LITIGATION COMPLAINT OF WALKER TOWING CORPORATION; Petition of B-R River Services, Inc., Plaintiffs-Appellees Plaintiffs-Appellants (86-3216) B-R RIVER SERVICES, INC., Cross-Appellant (85-4036), v. UNITED STATES of America, Defendant-Appellant (85-3990) Cross-Appellee.

Nos. 85-3990, 85-4036 and 86-3216.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 12, 1988.

Decided Dec. 5, 1988.

Rehearing and Rehearing En Banc Denied Feb. 28, 1989.

Bruce G. Forrest (argued), Robert S. Greenspan, U.S.Atty., Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., for U.S.

William P. Schroeder, Cincinnati, Ohio, James G. Apple (argued), Philip W. Collier, Stites & Harbison, Louisville, Ky., for B-R River Services, Inc.

Elmer Price (argued), St. Louis, Mo., for Walker Towing Corp.

Before MERRITT and RYAN, Circuit Judges, and PECK, Senior Circuit Judge.

MERRITT, Circuit Judge.

This admiralty case against the government arises because plaintiffs' barges were damaged as a result of the allegedly negligent operation of a navigational dam along the Ohio River near Cincinnati by the United States Army Corps of Engineers during a prolonged period of cold weather and ice formation. Our decision turns on two interlocking questions: whether controversial decisions made in connection with the operation of Markland Dam by the Corps are covered by the "discretionary function" exception to governmental liability under the Federal Tort Claims Act, and whether any conduct by the Corps not covered by this exception was negligent and caused an ice "jam" or "gorge" to form which damaged petitioner's barges. The District Court concluded that the discretionary function exception was inapplicable and that the Corps' negligence caused an ice jam to form, in turn causing barges to sink or be swept downstream against Markland Dam. It awarded $2,711,649.50 to plaintiffs as damages, plus prejudgment interest.

Petitioners Walker Towing Corporation and B-R River Services sought indemnity from the United States under the Suits in Admiralty Act, 46 U.S.C.App. Secs. 741-52, for damages sustained by them and their shippers as a result of the January 1978 disaster. The case was tried to the District Court. On September 24, 1985, the District Court filed a 136-page opinion and order concluding that the Corps was negligent in several aspects of the operation of its facilities, that the negligence, and not an unavoidable "Act of God," was the actual and proximate cause of the plaintiffs' damages, that the Corps was not entitled to immunity under the discretionary function exception of 28 U.S.C. Sec. 2680(a), and that the plaintiffs thus were entitled to recover from the government. We conclude that the major decisions by the Corps which plaintiffs claim negligently caused their injury are protected by the discretionary function exception. Therefore, we reverse the judgment of the District Court.

I. BACKGROUND

A. The Dam Structure

The Corps has divided the Ohio River into three operating districts: Pittsburgh, Huntington, and Louisville. There are two dams involved in this case: Meldahl, which is in the Huntington District; and Markland, in the Louisville District. Meldahl is located at mile 436.2; Markland is located downstream at mile 531.5. Meldahl is 35 miles above Cincinnati; Markland is 61 miles below Cincinnati. In Corps parlance, the "Meldahl pool" is the portion of the river upstream from Meldahl Dam, the "Markland pool" is the portion upstream from Markland to Meldahl, and the "McAlpine pool" is the portion upstream from McAlpine Dam at Louisville to Markland.

Meldahl and Markland are both navigational dams. River traffic passes the dam by way of navigational locks. Markland, the site of the problem in this case, consists of two locks on the south (Kentucky) side of the river and twelve water control gates, called "tainter gates," that span the entire river. The locks and dam structure is approximately 1500 feet wide. Each of the twelve tainter gates is 100 feet wide and 42 feet high. The locks are capable of raising or lowering tows of up to 15 barges and a towboat a distance of 35 feet. In addition to the locks and dam structure, Markland includes a hydroelectric plant on the Indiana side of the river that services part of southern Indiana.

When Markland was built in the late 1950's and early 1960's, the Corps was concerned with potential problems in passing accumulations of ice and drift through the dam. As a solution, the Corps installed tainter gates at Markland that could be submerged as well as raised. When a gate is raised, there is a gap between the river bed and the bottom of the gate; water passes under the gate. Some ice and drift can be passed under a raised gate because the effect of raising a gate is to create suction which would pull ice and drift from the surface underneath the gate and through the dam. In theory, however, it is much easier to pass ice and drift over a submerged gate. When a gate is submerged, ice and drift simply flow over the gate; much less force-and thus less water volume-are required to pull ice and drift over a submerged gate than under a raised gate. Five of the twelve gates at Markland are of the submergible type. Submergible gates can also be operated in the raised position; they are thus two-way devices.

By the middle of 1964, the Corps encountered significant problems in operating submergible gates at some other dams on the Ohio. When the submergible gates were lowered, they had a tendency to vibrate. Although the Court found that the vibration problem at Markland was not significant, dam personnel were not permitted to operate the gates in the submerged position at any of the Corps' dams on the Ohio. Therefore, in 1978, the only way to pass ice at Markland using tainter gates was by raising them. The District Court found that gates must be raised at least 10-12 feet off their sills, which are at the bottom of the river, before enough suction could be generated to pass ice under the gates. Additionally, the Court found that at least two adjacent gates must be raised before the suction is great enough to pass ice. Thus, ice could be passed using the gates only when the flow of the river was great enough that two gates could be raised without causing the level of the pool to fall below navigable levels. Generally, according to the witnesses and the District Court's findings, one foot of gate opening on one 100-foot wide gate passes 3,000 to 5,000 cubic feet per second (cfs). (Gate opening is measured by the total number of feet all gates are raised. E.g., if all twelve gates are raised one foot each, the dam is "running" twelve feet of gate opening.)

Other problems in passing ice also presented themselves. The Corps had determined that the concentration of all flows on two adjacent gates could cause riverbed erosion ("scour") immediately downstream of the dam unless the downstream pool was deep enough to alleviate the problem; otherwise, river flows had to be high enough that all gates could be raised. Additionally, the hydroelectric plant created ice-passing difficulties. The plant's full capacity was a flow of 35,000 cfs. The Markland lockmaster testified that the plant was routinely operated at full capacity. Flow used for the hydroelectric plant could not be used to allow the raising of gates; therefore, the 35,000 cfs used by the hydroelectric plant represented seven to twelve feet of gate opening that was unavailable.

The other ice-passing mechanism at Markland was the lock system. Markland has both a main and an auxiliary lock. The auxiliary lock, which is half as long as the main lock, is closest to the Kentucky shore; the main lock lies next to the auxiliary lock. The locks operate by means of "mitre gates," which swing out from the walls of the lock to allow filling or emptying, and swing back into the walls to allow vessels to enter and leave the lock. Additionally, each lock is equipped with one-piece "emergency leaves," which lift out of a recess built into the river bed. Ice can be passed through a lock by raising an emergency leaf to a level just below that of the upstream pool and allowing water and ice to flow over the leaf, thus "skimming ice." Due to a design problem, it was impractical to use the main chamber emergency leaf at Markland for passing ice. The auxiliary chamber could have been used; however, in 1976 a latch pin essential for use of the auxiliary chamber emergency leaf broke. The pin was not replaced until January 19, 1978. In any event, the Corps had permitted a "pusher boat" to become frozen in the chamber, thus eliminating the auxiliary lock from use as an ice-passing device.

B. January 1978

The District Court's opinion gives a detailed, day-by-day account of weather forecasts and conditions, river flows and conditions, and Corps actions leading up to January 27, 1978. We need not recount all of that history here. Instead, we summarize only the facts relevant to our decision.

One of the sources relied upon by the District Court is the Corps' Ice Committee Report of June 1978 (Exhibit 179). An excerpt from that report provides a concise summary of the events that ultimately led to this litigation:

Tributary storage reservoirs had been effective in averting moderate flooding in several principal Ohio River tributaries during December. Much of the excess reservoir storage had been released and streamflows were approaching "normal" by the end of the month. However, below normal temperatures had begun to produce ice, particularly on tributaries. The continued development of ice both on tributaries and along the banks of the Ohio on into January would have to be considered normal for that time of year.

During 7-9 January a strong frontal system passed over the Ohio basin. Runoff producing rainfall was accompanied by rapidly falling temperatures which then produced...