The opinion
KRUPANSKY, Circuit Judge,
dissenting in part, concurring in part.
Upon review of the majority opinion, I am constrained to concur, in part, and respectfully dissent, in part, for the reasons hereinafter set forth. Initially, I am in accord with the majority’s conclusion to affirm the trial court’s judgment in applying maritime comparative negligence principles and assessing 50% of the liability for Chotin’s damages against the United States arising as a result of the lockmaster’s negligence anchored in 33 C.F.R. 207.300 in failing to control and manage the lock and to direct and supervise mooring operations of the Keegan and her barge train during lockage; and in the trial court’s finding that Chotin was 50% contributorily negligent in causing damage to barge # 3390 by failing to manage and operate the Keegan and its barge train properly during the lockage.
I also join the majority in characterizing the negligent acts of the lockmaster as ordinary “garden variety” negligence not within the parameters of the discretionary exception of the Federal Tort Claims Act, 28 U.S.C. § 2680 (a). A factual analysis discloses that the lockmaster’s breach of duty in no way resulted from a policy judgment or policy decision implicit to invoking the discretionary exemption intended by Congress.
The government’s reliance upon U.S. v. S.A. Empresa De Viacao Aerea Rio Gran-dense, (Varig Airlines) 467 U.S. 787 , 104 S.Ct. 2755 , 81 L.Ed.2d 660 (1984) to support its application of the discretionary exemption to the facts of this case is misplaced. Varig Airlines reaffirmed the Court’s earlier interpretation of § 2680(a) articulated in the seminal case of Dalehite v. U.S., 346 U.S. 15 , 73 S.Ct. 956 , 97 L.Ed. 1427 (1953). In Varig Airlines the Supreme Court recognized that:
As in Dalehite , it is unnecessary — and indeed impossible — to define with precision every contour of the discretionary function exception.
467 U.S. at-, 104 S.Ct. at 2765 .
Having made that pronouncement, the Court proceeded to define the criteria against which the facts of any given case should be compared in resolving the protection afforded by the discretionary exemption imposed by § 2680(a) of the Federal Tort Claims Act by stating:
From the legislative and judicial materials, however, it is possible to isolate several factors useful in determining when the acts of a Government employee are protected from liability of § 2680(a). First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case. As the Court pointed out in Dalehite , the exception covers “[n]ot only agencies of government ... but all employees exercising discretion.” 346 U.S., at 33 , 73 S.Ct., at 966 . Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability.
Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.
Id.
The inexhaustible line of citations relied upon by the government simply emphasizes the ad hoc application of facts to the Varig Airlines criteria to identify the discretionary exception.
Enjoining the dictates , of Varig Airlines upon the developed facts of the instant case, I cannot, in conscience, conclude that the lockmaster’s negligence on the night of January 20, 1982 involved executive and/or *214 administrative decisions grounded in social, economic and political policies of the kind that Congress intended to safeguard from judicial second-guessing. In the case at bar, the government had exercised its policy by promulgating regulations to ensure the safe passage of vessels during the locking procedures. It was the lockmaster’s negligent performance in ignoring the government’s regulations that gave rise to the government’s negligence in causing damage to Chotin’s barge.
The government’s attenuated interpretation of Varig Airlines would have this Court extend the discretionary exemption, without exception, to all governmental activities undertaken by governmental employees under circumstances involving the exercise of judgment. In noting that pragmatically all negligent conduct, to a greater or lesser degree, is the product of a voluntary election to perform an act I am constrained to observe that the government’s suggested interpretation would confer the discretionary exception on all governmental activities and conduct that permitted or required the exercise of an election or option, which interpretation would be in derogation of the congressional intent incorporated into the FTCA and SIAA. In General Public Utilities Corporation v. United States, 745 F.2d 239 , 245 (3d Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 1227 , 84 L.Ed.2d 365 (1985), a post-Fan# Airlines, case, the Third Circuit demonstrated its understanding of Varig Airlines:
The exemption from the Tort Claims Act is based on the nature of the governmental discretionary function, not whether there is an option to choose. Regulatory activities are within the exemption, not because alternatives exist in particular circumstances, but because of the fundamental character of the role assigned to the agency.
Likewise, in Canadian Transport Company v. United States, 663 F.2d 1081 (D.C. Cir.1980), the D.C. Circuit recognized the existence of a discretionary function exception in the SIAA:
The government appears to argue that if an action involves the exercise of judgment by a government employee, the action is discretionary and the United States is immune from suit____ Courts have recognized, however, that giving such a broad reading to the term “discretionary” would effectively immunize almost all government activity from suit under the FTCA.
663 F.2d at 1086 . The government’s proposed interpretation would effectively eviscerate the legislative intent reflected in the FTCA and the SIAA. In the case at bar the lockmaster abdicated his duties to immediately control and manage the locking procedure; to supervise the mooring of the vessel and the barge flotilla in the lock; to supervise the tying of the backing and towing lines during lockage; to check the distance between the head of the flotilla and the upstream left gate after the captain of the Keegan informed him that the flotilla had been secured in the chambers; to ultimately discontinue the locking procedure when it was obviously dangerous; to stop the flow of water into the chamber to prevent the disaster because, having forgotten the keys to the upper control chamber in the lower control station, he was unable to enter the upper control station to close the necessary valves. In sum, the lockmaster’s performance from the inception of the locking procedure was nothing short of a comedy of errors. Accordingly, I would concur with the majority’s conclusion that the lockmaster’s conduct did not fall within the discretionary exception of the FTCA as urged by the government on this appeal.
I cannot, however, endorse the majority’s interpretation of the Rivers and Harbors Act, 33 U.S.C. §§ 408 and 412 and the majority’s disposition of the issue joined thereunder.
Those sections provide:
It shall not be lawful for any person or persons to ... alter, deface, destroy, move, injure, ...or any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United *215 States ... for the preservation and improvement of any of its navigable waters or to prevent floods ... (emphasis supplied). 33 U.S.C. 412 — ____ And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title shall be liable for the pecuniary penalties specified in section 411 of this title, and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft ... and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof.
Initially, my dissent is predicated upon this Circuit’s precedent articulated in Hines, Inc. v. United States, 551 F.2d 717, 724 (6th Cir.1977), a case factually analogous to the instant ease, wherein it was unequivocally announced “Section 408 imposes strict liability, as compared to § 409’s requirement of negligence. Section 412 also provides that ‘any boat, vessel ... or other craft used or employed in violating any of the provisions of sections ... 408 and ... of this title ... shall be liable for ... the amount of the damages done by said boat, vessel or other craft ...’” See United States v. Tug Colette Mallory, 507 F.2d 1019 (5th Cir.1975).
Hines, Inc. thereupon proceeded to favorably adopt the Seventh Circuit’s rationale enunciated in United States v. Ohio Valley Co., Inc., 510 F.2d 1184, 1188 (7th Cir.1975):
[T]he purpose of the combined effect of sections 14 and 16 [ 33 U.S.C. §§ 408 and 411] is to provide funds for the replacement and maintenance of improvements built by the United States. This purpose is implemented through an absolute liability standard. Thus, it would be wholly inconsistent to apply the limitation of liability provisions of section 183(a) to the absolute liability provisions of section 14, while at the same time not applying them to section 15 (wreck statute) [ 33 U.S.C. § 409 ] which speaks in terms of “voluntary or carelessly” allowing a vessel to sink. Furthermore, section 183(a) speaks in terms of lack of “privity and knowledge.” That phrase implies that the owner be unaware of the fault in his vessel that caused an accident. Since the triggering mechanism for section 183(a) limitation of liability is tied to an awareness of negligence, and because negligence is not significant in actions under sections 14 and 16, it follows that the limitation of liability provisions are inapplicable to those sections.
The pronouncements of the Seventh Circuit in United States v. Ohio Valley Co. and the Sixth Circuit’s resolution of Hines, Inc. v. United States were echoed by the Eighth Circuit in United States v. Logan and Craig Charter Service, 676 F.2d 1216 (8th Cir.1982) wherein that court further analyzed the purpose of the Rivers and Harbors Act, 33 U.S.C. §§ 408 and 412:
The purpose of the Act is to protect, preserve, and make safe the Nation’s navigable waterways, and the United States is the principal beneficiary of the Act. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201 , 88 S.Ct. 379 [385], 19 L.Ed.2d 407 (1967). The Act should be construed broadly to effectuate its goals. Wyandotte Transportation Co. v. United States, supra; United States v. Republic Steel Corp., 362 U.S. 482 , 80 S.Ct. 884 , 4 L.Ed.2d 903 (1960). Congress imposed strict liability under sections 408 and 412 in order to provide funds for the replacement and maintenance of improvements made by the United States; to interpret those sections in such a way as to limit liability would be inconsistent with the intention of Congress.
573 F.2d at 997.
As early as 1906, the First Circuit laid to rest challenges to the Rivers and Harbors Act in New England Dredging Co. v. United States, 144 Fed. 932, 933 (1st Cir.1906), wherein it elaborated on the purpose underlying the congressional promulgation when it explained:
*216 If the view of the United States is upheld, it is by virtue of the modern body of law, existing in this country, as well as in England, which is founded upon the arbitrary but necessary police power inherent in government, rather than upon general principles which govern in other cases.
This exceptional rule, founded largely upon statutes enacted for the enforcement of the plenary power in government is recognized as applying to ... a variety of conditions relating to the public health and public good.
As to wrongs within this rule, the penalty is supposed to attach to the offending act without regard to the question of willfulness or intent, and without regard to the question of mistake or innocence. The rule is, of course, in derogation of the principles of the common law, and its drastic quality is justified upon grounds of necessity, and as in the interest of the public good.
The expressed object of resorting to the exercise of plenary power through arbitrary and exceptional remedies in such matters, is to better safeguard the public good in situations where the public good is easily subject to imposition and injury through heedless, inadvertent, or indifferent violations of laws enacted for the general welfare____
Thus, having declared that strict liability under 33 U.S.C. §§ 408 and 412 of the Rivers and Harbors Act arises from a violation of the above statutes and not pursuant to common law negligence and having further declared that the trial court properly assessed 50% of the liability proximately contributing to the damage of the upper miter gate of the Wilson Lock on the Tennessee River against Chotin, it must, pursuant to the mandate of the statutory language, reimburse the government for the entire cost of the damage to the described miter gate.
Chotin argues that the following dicta in United States v. Tug Collette Mallory, has in some way eroded the interpretations of strict liability attributed to 33 U.S.C. §§ 408 and 411:
Defenses to the strict liability imposed by these statutes are not well-developed; however, we have no doubt that if the tug had shown the gate man to be solely at fault in causing the accident a defense would have been established.
507 F.2d at 1022 . These arguments, however, are not persuasive because the cited reference, in my opinion, does not abuse the conclusion of strict liability imposed by § 408 and 411 of the Act. The precise language of those sections forecloses Chotin’s contentions. The pertinent specifications in the respective sections read as follows:
33 U.S.C. § 408 . It shall not be lawful for any person or persons to ... alter, deface, destroy, move, injure,
33 U.S.C. § 411 . Every person and every corporation that shall violate, ... 33 U.S.C. § 412 — ____And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title shall be liable for ...
Mindful of the congressional intent to make the government the principal if not the sole beneficiary of the Rivers and Harbors Act, it is obvious from the foregoing, that the strict liability imposed by the above sections is directed toward any culpable persons and/or corporations that “... alter, deface, destroy, move, injure, ... or in any manner whatsoever impair the usefulness of any sea wall, bulkhead, jetty, wharf, pier or other work built by the United States ...” except the United States, even under circumstances where the government contributed in some greater or lesser degree to said damage. Accordingly, it must necessarily follow that under the circumstances wherein the government was the sole and only cause of the damage to its property and the ship owner was free of any negligence whatsoever, the vessel owner is not a person or corporation within the meaning and intent of the above cited sections. Stated differ *217 ently, total governmental culpability affords a compatible complete defense if not the only defense to the strict liability imposed by the Act.
I would therefore reaffirm the pronouncements of strict liability imposed by 33 U.S.C. §§ 408 , 411 and 412 as interpreted by this Circuit in Hines, Inc. v. U.S. and all other circuits that have addressed the issue 1 and affirm the trial court’s disposition to require Chotin to assume payment for the total amount of the repairs to the upstream miter gate of the Wilson locks situated on the Tennessee River.
. The majority would support the application of comparative negligence principals by assessing 50% of the damages to the upstream miter lock against the United States by citing to United States v. Reliable Transfer, Inc., 421 U.S. 397, 411 , 95 S.Ct. 1708, 1715 . Initially, as the majority opinion notes the collision of barge #3390 with the upstream miter gate of the Wilson lock was not a "collision” at sea involving two or more ships nor was it a "stranding” as that term is applied under admiralty law. Moreover, the Reliable Transfer, Inc. decision was not impacted by a strict liability congressional enactment designed to benefit the United States. I find no factual or legal comparison between the instant case and Reliable Transfer, Inc.