Appendix — Walker Towing Corp. v. United States

6° FILED

73B=1904=|| wy 24 08

JOSEPH F. SPANIGL, JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

IN RE: OHIO RIVER DISASTER LITIGATION

IN THE MATTER OF THE COMPLAINT OF WALKER

TOWING CORPORATION CONSOLIDATED WITH

IN THE MATTER OF THE PETITION OF B-R RIVER SERVICES, INC.,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO |

JOINT PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ELMER PRICE*

JAMES APPLE JOHN R. HALPERN

PHILip W. COLLIER ALAN K. GOLDSTEIN

StTiTES AND HARBISON GOLDSTEIN AND PRICE

600 West Main Street 818 Olive Street, Suite 1300

Louisville, Kentucky 40202 St. Louis, Missouri 63101

(502) 587-3400 (314) 421-0710

Counsel for Petitioner Counsel for Petitioner

B-R River Services, Inc. Walker Towing Corporation

*Counsel of Record for Petitioners

(continued inside front cover)

St. Louis Law Printing Co., Inc., 13305 Manchester Road 63131 314-231-4477

WILLIAM P. SCHROEDER

RENDIGS, Fry, KEILY & DENNIS

900 Central Trust Bank Tower

Fourth and Vine Streets

Cincinnati, Ohio 45202

(513) 381-9225

Counsel for Walker Towing

Corporation and B-R River

Services, Inc.

TABLE OF CONTENTS TO APPENDIX

Opinion of the United States Court of Appeals for the

Sixth Circuit (December 5, 1988)................

Judgment of the United States Court of Appeals for

the Sixth Circuit (December 5, 1988) ............

Order of the United States Court of Appeals for the

Sixth Circuit Denying Petition for Rehearing En

ei oy ge: a Re

Judgment of the United States District Court, Southern

District of Ohio, Western Division (September 24,

Eso 'o ks Sale a eet ie ae ae a ee ee os

Opinion of the United States District Court, Southern

District of Ohio, Western Division (September 24,

FR ae are ae ee eae

Amended Judgment of the United States District Court,

Southern District of Ohio, Western Division

CONN Ot, SUED. pie ic Keo acca Sead ween

Amended Opinion and Order of the United States

District Court, Southern District of Ohio, Western

Division (September 27, 1985) ............0e000-.

Second Amended Judgment of the United States District

Court, Southern District of Ohio, Western Division

CET Se Se acca k Sivan eS AK es eae ubaks Otek ,

United States Army Engineer Division, Ohio River

Corps of Engineers Regulation No. 1130-5 (7

POU CUR 5 ca os cae eee e katara eee a nks bs

United States Army Engineer Division, Ohio River

Corps of Engineers Division Circular No. 16-58

Fees SU. bon eee sean Rk Vee ems

Page

A-l

A-24

A-26

A-27

A-32

A-155

A-159

A-161

Department of the Army Louisville District Corps of

Engineers Regulations Governing Operation of

Locks and Dams During Ice Periods and Reporting

Ice Conditions (23 January 1978) ..........-+-+: A-168

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 85-3990; 85-4036; 86-3216

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),

Vv.

United States of America,

Defendant-Appellant (85-3990),

Cross-Appeilee.

On Appeal from the United States District Court

for the Southern District of Ohio.

Decided and Filed December 5, 1988

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 ques-

tions: 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

a =. yom

the Corps not covered by this exception was negligent and caus-

ed 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 prejudg-

ment interest.

Petitioners Walker Towing Corporation and B-R River Ser-

vices sought indemnity from the United States under the Suits in

Admiralty Act, 46 U.S.C. §§ 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 Sept-

ember 24, 1985, the District Court filed a 136-page opinien

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 prox-

imate cause of the plaintiffs’ damages, that the Corps was not

entitled to immunity under the discretionary function exception

of 28 U.S.C. § 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 excep-

tion. 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 late 1950’s and early 1960’s, the

Corps was concerned with potential problems in passing ac-

cumulations 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 suc-

tion 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. Sub-

mergible 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

= es

tendency to vibrate. Although the Court found that the vibra-

tion problem at Markland was not significant, dam personnel

were not permitted to operate the gates in the submerged posi-

tion 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 the 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 sec-

ond (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’’) im-

mediately 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. Addi-

tionally, 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-passsing 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

— - a

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 ‘‘skim-

ming 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 1976a

latch pin esential 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 ac-

count of weather forecasts and conditions, river flows and con-

ditions, and Corps actions leading up to January 27, 1978. We

need not recount all of that history here. Instead, we sum-

marize 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 avert-

ing moderate flooding in several principal Ohio River trib-

utaries during December. Much of the excess reservoir

storage had been released and streamflows were ap-

proaching ‘‘normal’’ by the end of the month. However,

below normal temperatures had begun to produce ice, par-

— a

ticularly 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 accom-

panied by rapidly falling temperatures which then produc-

ed snow. This began the accumulation of snow cover

which was to ultimately set a record for the winter over

much of the basin. It also signaled the advent of much

colder temperatures which were to prevail for an extended

period. More significantly, however, runoff from the rain-

fall set in motion much of the ice which was to later

become such a problem. Runoff from uncontrolled areas

below tributary storage reservoirs flushed substantial

volumes of tributary ice out into the Ohio, where rising

stages broke bank ice to join the overall mass. .. .

In the middle reaches of the Ohio, streamflow increased

threefold from the morning of 7 January until the morning

of 12 January. Movement of ice resulted in progressively

worsening conditions, and from evening of 16 January un-

til morning of the 17th, no tows were able to get through

the ice pack above Meldahl Dam. Thereafter, movement

of boats and ice gradually reduced the congestion at

Meldahl but the queue of waiting boats was not cleared un-

til the 25th. All during this time, intermittent snowfall

continued to add to overall coverage, but temperatures re-

mained well below normal into the week of 22 January.

By 24 January, temperatures had risen enough that

moisture moving into the basin that day fell in the form of

light rain. Intensity increased only slightly in the next 24

hours but there was no evidence of runoff or increased

streamflow. It appeared that the snow pack was absorbing

and holding the rainfall. Weather forecasts on the morn-

— <n

ing of 25 January indicated continuation of relatively light

rain for another 12-18 hours and then a return to very cold

conditions. While rainfall intensity was expected to in-

crease slightly, total amounts expected were not considered

alarming. Rainfall intensity increased a great deal more

during the day than had been anticipated and, by late

afternoon, the rain was being forecast to turn to heavy

snow by about midnight and to continue into the 26th.

Forecasts on the morning of 25 January had been based

on the belief that a low pressure system in the Gulf states,

associated with a warm front to the south and southeast of

the Ohio basin, would pass to the southwest of the basin

and up the Atlantic coast without significant impact on the

Ohio basin. Coming into the western and northwestern

portions of the basin was a cold front that was expected to

move eastward over the basin, bringing much colder air

and shutting off moisture. Later in the day, the low

pressure system unexpectedly joined the cold front, inten-

sified, and took a northeasterly path right across the Ohio

basin. With record low barometric pressures, the storm

passed through the Cincinnati area shortly after midnight

with wind gusts reaching 50 mph. Gusts reached 80 mph

by the time the storm exited the basin in the Cleveland area

later in the day on the 26th.

Temperatures on the middle reaches of the Ohio plunged

to around zero on the morning of 26 January and strong

winds prevailed through much of the following day. Bliz-

zard conditions paralyzed much of the area, but the most

important factor relating to river ice had been the rainfall

immediately preceding the enveloping cold air. In about

48 hours, rainfall intensity steadily inc:eased from an in-

significant drizzle to fairly heavy just before turning to

snow. Rainfall averaged about 1% inches over most of the

southern tributaries. With overflow of storage reservoirs

cut to minimum, runoff from remaining uncontrolled por-

—_ >

tions of these watersheds brought rapid stream rises. The

collective effects of this outpouring into the Ohio main

stem were rapid rises on the main stem, and operators of

the navigation structures had no alternative but to simply

pass through whatever water or ice came to them from

upstream.

The river stage at Cincinnati rose from 29.6 feet on the

morning of 25 January to 35.3 feet by the next morning

and then to 46.6 feet by the morning of the 27th. There-

after, the rise slowed and a crest of 53.9 feet was subse-

quently reached on the 30th. Ice movement, with periodic

stoppage and accumulation, had been a significant prob-

lem since the 16th. By the 25th, several miles of the river

upstream from Markland Dam had become so jammed

with ice that navigation had essentially ceased. The rapid

rise beginning on the 25th and the forcing of more ice into

that jam then produced a nightmare for the next several

days. It is difficult to know with certainty just when the

massive ice jam began to become a gorge jam causing a

damming effect. Best indications are that it was late morn-

ing on the 27th, when localized flooding was reported at

Aurora, Indiana. In any event, force of the rapidly in-

creasing riverflow soon broke the gorge in the afternoon

and moved much of the ice down against Markland Dam.

Exhibit 179 at App. 1, pp. 6-7.

When the ice jam described above broke, at 4:17 p.m. on

January 27, a wall of ice and water swept downstream. Al-

though the speed of the broken gorge was only four or five miles

per hour, its force was sufficient to sweep away anything in its

path. As the District Court described the scene:

What occurred was probably the , °atest single disaster

to hit the Ohio River in modern times. Barges, towboats,

and docks were swept onto or through Markland Dam;

barges and towboats were sunk; Big Bone Island [at mile

~-

—

517] was simply shaved off, and does not now exist.

Cleanup operations took weeks, and these events have

earned a permanent place in Ohio River lore.

Dist.Ct. opinion at 90. Both Walker Towing and B-R River

Services sustained property damage when the jam broke.

C. Ice Jams

Several experts testified regarding the formation,

characteristics, and dissipation of ice on the river. A general

understanding of river ice is necessary before we discuss the

specifics of the January 1978 ice.

Ice can form on ariver only when the water reaches maximum

density, which occurs at around four degrees Celsius or 39

degrees Farenheit. At this point, the formation of ice can occur

in two different ways. Sheet ice will form if there is little tur-

bulence. The water at the surface is cooled to zero degrees Cel-

Sius (the freezing point), while water below the surface is not

quite as cold. The more quickly sheet ice forms, the thinner it

will be, because the ice cover will insulate the river from colder

air and thus trap the heat energy in the water. Sheet ice presents

relatively few problems to navigation, primarily because of the

structure of sheet ice crystals. The crystals are long and thin and

arranged in a vertical plane. Thus, when sheet ice is broken

(e.g., by a towboat), it simply fractures vertically. Once the ice

is fractured, the thermal energy in the water below supplies

enough heat to melt the ice.

The second way ice can form on a river, and the way the ice

formed in January 1978, occurs when the water is turbulent and

the air temperature is extremely cold. Turbulent water can

reach a temperature slightly below the freezing point before

solidifying. In this situation, most of the heat energy in the

water has been dissipated. When the ‘‘supercooled’’ water

(water in liquid form with a temperature below freezing) comes

into contact with the subzero air, ‘‘frazil ice’’ can form. Frazil

= ee

ice crystals are small and flat, and cling to one another and any-

thing else with which they come into contact, creating a sort of

Slush. Once frazil ice has formed, individual particles of frazil

ice come together to form larger pieces of ice, called ‘‘brash

ice.’’ Brash ice in turn may develop into even more solid pieces

of ice called ‘‘black ice.”’

The formation of frazil, brash, and black ice creates more

serious navigational problems than the formation of sheet ice.

Ice cover on the river becomes an accumulation of floes. Be-

cause the thermal energy of the water must be largely dissipated

before frazil ice will form, there is less potential for melting than

with sheet ice. The longer-lasting nature of this type of ice, the

creation of large moving floes, and the tendency of the ice to

stick to anything it touches combine to cause a variety of

navigational difficulties.

If the ice floes are unobstructed, the ice will simply move

downriver. If, however, something obstructs the ice, a ‘‘jam’’

(also called a ‘‘gorge’’) can form. A variety of factors can in-

dependently or in unison cause ice to be arrested. Natural

obstruction can include a narrowing in the river, bends in the

river, islands or shoals. Man-made obstructions such as dams

can also arrest the downstream progress of ice.

Once ice is obstructed, one other set of conditions must ob-

tain before a jam forms. If the ice simply stays in place in a

single layer, the river will continue to flow underneath the ice

and relatively little harm will result. However, if the velocity of

the ice moving downstream is great enough, and more and more

ice comes downstream, the new ice will begin to pile up

underneath the ice already present, creating a damming ef-

fect—an ice jam.

Engineers have developed a mode of analysis to aid prediction

of when and where jams will form. The analysis was developed

to predict when logs would jam on a river, but has been adapted

as a predictive tool for ice. This analysis relies on a variable

— A-ll —

y

called the ‘‘Froude number.’’ The formula for obtaining the

Froude number for a given point in the river is:

FR = V/gY

where V is the velocity of the water, Y is the depth of the water,

and g is the gravitational constant, 32.2 ft./sec’. Thus, the

faster and shallower the river is at a certain point, the higher the

potential for jamming. According to the plaintiffs’ ice expert,

Samuel Lazier, a value greater than Fr = 0.08 indicates a high

potential for jamming. The use of Froude numbers to predict

jam formation is complicated by the further facts that upstream

progression of an ice cover occurs more easily at lower Froude

numbers, as does clogging of ice traveling downstream. Indeed,

by the close of his testimony, Lazier acknowledged that Froude

number analysis is merely an ‘‘indicator,’’ and is not to be taken

‘‘literally.’’ Tr. 826-27.

The development of an ice jam occurs over a period of time.

New ice is constantly delivered to the jam, but the older ice is

eroded somewhat by the flow of the river. Eventually, as more

new ice arrives than old ice erodes, a jam reaches the point

where it must either deteriorate or break. If the jam deterio-

rates, the ice simply continues to move downstream with the

normal flow of the river. However, if the jam is large enough to

cause a severe blockage of river flow, a differential head will

form. A differential head is a large buildup of water on the

upstream side of the jam combined with relatively little water on

the downstream side. This creates a large fore: across the jam.

The force of the differential head can be great enough to break

the jam and sweep it quickly downstream, carrying anything in

its path (e.g., barges and towboats) with it. The technical term,

derived from the French, for this rush of water and ice is, ap-

propriately, a ‘‘debacle.”’

D. The District Court Decision

After a lengthy bench trial, the District Court found that the

government was liable for all of Walker Towing’s damages and

— A-12 —

40% of B-R River Services’ damages. The District Court sum-

marized its holding as follows:

For reasons which follow, we find and conclude that the

United States was negligent in several aspects of its opera-

tion of facilities owned and operated by it, through the

Army Corps of Engineers. The gist of the negligence fin-

dings are that the Government, under a duty to use due

care in the operation of its locks and dams, breached that

duty by, inter alia, failing to pass ice through Markland

Locks and Dam as the ice came downstream during the

middle weeks of January, 1978; failing to engage in routine

surveillance of the reaches of the Ohio River upstream

from Markland; failing to train its personnel in methods of

handling and evaluating ice conditions; failing to ensure

that the dam was in fact capable of dealing with reasonably

foreseeable ice conditions; and failing to intermittently

restrict diversion of river flows to a_ hydroelectric

generating facility located on the Markland site so that ice

could be passed through the dam.

We also conclude that the acts or omissions detailed

herein constitute deviations from the appropriate standard

of care and were a proximate cause of the damages sustain-

ed by petitioners Walker Towing Company, Inc. and B-R

River Services, Inc. However, we conclude that B-R River

Services, Inc., was itself negligent, and attribute to that

petitioner sixty percent of the responsibility for its

recoverable losses.

Finally, we conclude that Walker Towing Company is

entitled to recover for its losses in the amount of

$1,500,000.00, and B-R River Services, Inc. is entitled to

recover for its losses in the amount of $711,649.50, both

together with prejudgment interest at the statutory rate

from the dates on which petitioners settled with their

claimants.

Dist.Ct. opin. at 4-5.

A A

— A-13 —

II. DISCUSSION

The United States has appealed the decision of the District

Court on several grounds. First, the government asserts that all

of its actions are shielded from liability because all of the ac-

tions upon which liability was predicated were discretionary

functions. Second, the government asserts that the Corps’

handling of the ice conditions in January 1978 did not cause the

breaking of the ice jam and that the District Court was clearly

erroneous in so holding. Third, the government argues that the

District Court held the Corps to an unreasonable standard of

care. Additionally, the government asserts that even if the

disaster can in some way be attributed to the actions of the

Corps, the disaster was too remote a consequence of those ac-

tions to be regarded as the proximate cause of the disaster and

was otherwise unforeseeable. Finally, Walker Towing cross-

appeals from the District Court’s denial of its request for at-

torneys’ fees under the Equal Access to Justice Act, 28 U.S.C. §

2412. Because we hold that the District Court erred in finding

that no Corps actions causally related to the disaster were shiel-

ed by the discretionary function exception, we need not reach

the government’s arguments on proximate cause. Additionally,

we do not decide the cross-appeal because the plaintiffs are no

longer prevailing parties.

A. The Discretionary Function Exception

When Congress enacted the Federal Tort Claims Act, it

preserved the government’s sovereign immunity for

any claim based upon an act or omission of an employee of

the Government, exercising due care, in the execution of a

statute or regulation, whether or not such statute or regula-

tion be valid, or based upon the exercise or performance or

the failure to exercise or perform a discretionary function

or duty on the part of a federal agency or an employee of

the Government, whether or not the discretion involved be

abused.

am Aphid =

28 U.S.C. § 2680(a). We have held that the discretionary func-

tion exception applies to the Suits in Admiralty Act as well as to

the FTCA. Chotin Transp., Inc. v. United States, 819 F.2d

1342, 1347 (6th Cir. 1987) (en banc). The question whether the

discretionary function exception shields the government from

liability is one of subject matter jurisdiction; therefore, we ex-

amine that issue first. Feyers v. United States, 749 F.2d 1222,

1225 (6th Cir. 1984); Carlyle v. United States Department of the

Army, 674 F.2d 554, 556 (6th Cir. 1982).

In Dalehite v. United States, 346 U.S. 15 (1953), the Supreme

Court first addressed and elaborated on the scope of the discre-

tionary function exception. It enumerated three types of ad-

ministrative activities which are covered by discretionary func-

tion: the initiation of programs, planning the operation of pro-

grams and carrying out programs in accordance with directions.

In holding the government immune from liability for damages

resulting from negligent drafting of fertilizer export regulations,

negligence in the manufacture of fertilizer, and the negligent

failure to police the shipboard loading of fertilizer, the Court

held that all three types of alleged negligence were protected by

the exception.

It is unnecessary to define, apart from this case, precisely

where discretion ends. It is enough to hold, as we do, that

the ‘‘discretionary function or duty’’ that cannot form a

basis for suit under the Tort Claims Act includes more

than the initiation of programs or activities. It also in-

cludes determinations made by executives or ad-

ministrators in establishing plans, specifications, or

schedules of operations. Where there is room for policy

judgment and decision there is discretion. It necessarily

follows that acts of subordinates in carrying out the opera-

tions of government in accordance with official directions

cannot be actionable. If it were not so, the protection of §

2680 would fail at the time it would be needed, that is,

when a subordinate performs or fails to perform a causal

— A-15 —

step, each action or nonaction being directed by the

superior, exercising, perhaps abusing, discretion.

Id. at 35-36 (footnotes omitted). The court found that govern-

ment decisions on which the plaintiffs sought to base liability

‘‘were all responsibly made at a planning rather than opera-

tional level and involved considerations more or less important

to the practicability of the Government’s fertilizer program.”’

Id. at 42.

In Miller v. United States, 583 F.2d 857, 867 (6th Cir. 1978),

we applied Dalehite to hold the discretionary function exception

applicable to a case arising from the release of large quantities

of water from Lake Superior to Lake Huron through the lock

and dam system at Sault Ste. Marie. We pointed out that

Dalehite itself relied on several lower federal court cases im-

munizing the government from liability in connection with the

operation of dams and locks:

In this regard, the Court cited with approval a number

of District Court decisions involving claims of water

damage. In Lauterbach v. United States [95 F. Supp. 479

(W.D. Wash. 1951)], the court rejected the plaintiffs’

claim of damage due to the release of flood waters from a

dam, based in part on the discretionary function exception

as applied to the design and construction of the dam, and

in part on a finding that there was in fact no negligence

shown in its operation. In Olson v. United States [93 F.

Supp. 150 (D.N.D. 1951)], the court granted a motion to

dismiss plaintiff’s claim that employees of the United

States negligently opened the floodgates of a dam, destroy-

ing plaintiff’s livestock; the court concluded that ‘‘When

flood waters are-to be released and how much water is to

be released certainly calls for the exercise of judgment... .

The Government’s agents did not open the gate in the dam

in a negligent manner. They merely abused their discretion

as to when to open it.’’ [93 F. Supp. at 152-53]

— A-16 —

583 F.2d at 867 (footnotes omitted) (emphasis orginal). See also

Coates v. United States, 181 F.2d 816 (8th Cir. 1950).

The viability of Dalehite was reaffirmed in United States v.

S.A. Empreso (sic) de Vincao (sic) Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797 (1984). In that case, the Court held that

the negligent failure of the Federal Aviation Administration to

inspect certain aspects of aircraft design during the certification

process was protected under the discretionary function excep-

tion. Most recently, a unanimous Supreme Court emphasized

that the discretionary function exception does not preclude

liability for any and all acts by a federal agency, but ‘‘applies

only to conduct that involves the permissible exercise of policy

judgment.’’ Berkovitz v. United States, 108 S.Ct. 1954, 1960

(1988) (delegation to private sector of vaccine safety testing in

violation of FDA regulations not covered by exception).

The District Court rejected the government’s contention that

all of the actions for which it was held negligent were, under the

principles of Dalehite, Varig Airlines, and Miller, protected by

the discretionary function exception. The actions which the

District Court deemed negligent and unprotected by immunity

were: 1) failure of the Corps to conduct periodic inspections of

the Markland pool; 2) failure to replace the broken latch pin in

a timely manner and allowing the pusher boat to become frozen

in the auxiliary lock chamber; 3) failure to sufficiently train lock

personnel; 4) failure to restrict the flow to the hydroelectric

plant in order to have more flow through the gates, thereby in-

creasing Markland’s ice-passing capacity; 5) failure to coor-

dinate ice-passing activities with Meldahl and to follow the same

policy that Meldahl followed in maximizing the passage of ice;

and 6) failure to compensate for the immobilization of the

submergible tainter gates.

Applying the principles of these cases to this case, we con-

clude that the District Court correctly viewed the first three of

the Corps’ actions as involving operational, non-policy deci-

— A-17 —

sions. The District Court erred, however, in its analysis of the

Corps’ decision not to restrict the flow to the hydroelectric plant

and as a consequence not to follow the same policy of maximiz-

ing ice passage that the Corps followed at Meldahl. The Court

also erred in its analysis of the Corps’ decision not to compen-

sate for the immobilization of the submergible gates.

B. The Hydroelectric Plant Issue

The District Court decided that the decision not to cut back

flow to the hydroelectric plant was made entirely by the

Markland lockmaster:

Senior Corps personnel testified that, during the period

here in question, the Corps was under pressure from the

Governor of Indiana to maintain maximum output from

the Markland generating plant. Power was needed because

the United Mine Workers were on strike, and coal was at a

premium. Thus, there are overtones of intergovernment

relations, matters likely discretionary, which affect con-

sideration of this point.

However, Markland Lockmaster Sheldon testified that

he had the authority to cut the amount of water diverted to

the power plant down to 5,000 cfs. He did not testify that

he had been instructed that the plant must be kept on line,

nor did he testify that he was aware that pressure had been

brought to bear upon his superiors to maintain the plant at

full capacity.

Had the Corps, through e.g., Mr. Whitlock [one of

Sheldon’s superiors], either formally or informally ordered

that the power plant be fed the maximum amount of water

under all circumstances, it is likely that we would see that

as a policy determination isolated from challenge by the

discretionary function exception. However, because the

point was not translated into an operation guideline for

personnel at the dam, and because it is unquestioned that

— A-18 —

as the matter stood in January 1978, workers at the dam

had the authority to cut back flow to the plant, we find

that decisions, or omissions, regarding the extent to which

water would be diverted to the hydroelectric plant fall out-

side the purview of the discretionary function exception.

Dist.Ct. opin. at 110-11.

The District Court’s view that the power plant decision was

nondiscretionary thus hinges on its finding that the Corps did

not order the lockmaster to feed the maximum amount of water

to the plant under all circumstances. But the record is clear that

the decision was made at a higher level.

It is true that under normal circumstances, the lockmaster

could vary the flow to the power plant; however, the record is

clear that once the ice emergency and severe weather conditions

began to create problems on the river in late January 1978,

Corps policymakers became involved. General Heiberg, who

was at the time the Division Engineer for the Ohio River Divi-

sion, testified that the competing needs for power and

navigability were weighed and that he decided that the need to

generate power should prevail in that situation. See Tr. 4

-372-75, 4 - 431 (’’[I]t was essentially my decision.’’). District

Engineer Whitlock also testified that the decision to continue

maximum diversion to the power plant was made by balancing

the competing needs for electricity and maintenance of naviga-

tion. Tr. 3 - 262-64, 3 - 337. Larry Dickson, who was directly

under Whitlock and was the immediate supervisor of Lockmas-

ter Sheldon, testified that while the plant was operating at near

capacity, he discussed the plant with both Sheldon and

Whitlock, and the decision was made to tell Sheldon to ‘‘keep

on doing what you’re doing.’’ Tr. 3 - 321-22. Sheldon testified

that he was in communication with Whitlock and Dickson

several times a day, and that Whitlock was making the decisions

about passing ice. Tr. 763-64, 715. Thus, Sheldon was not exer-

cising judgment in January 1978; he was merely carrying out the

discretionary decisions of his superiors.

— A-19 —

We emphasize that our inquiry into the factual question

whether it was Sheldon or his superiors who were responsible

for the power plant decisions is relevant only to determine

whether a concededly discretionary decision was implemented.

In undertaking this inquiry, we do not deviate from the princi-

ple that the character of the decision, and not the identity of the

decisionmaker, determines whether the discretionary function

exception applies. ‘‘It is the nature of the conduct, rather than

the status of the actor, that governs.”’ Varig Airlines, 467 U.S.

at 813. The District Court correctly recognized that the

character of the power plant decision by the Corps policymakers

was discretionary, but it clearly erred in concluding that this

decision was never effectuated. We are convinced that a

definite mistake has been committed, and we reverse on this

point. United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948).

C. The Markland-Meldahl Ice-Passing Issue

The District Court’s ultimate conclusion was that ‘‘[flailure

to pass ice at Markland proximately caused the ice gorge at Big

Bone Island.’’ Dist. Ct. opin. at 134. This decision was heavily

influenced by the Court’s view of action taken by personnel

upstream at Meldahl. The District Court noted that ‘‘large

amounts of ice were continually passed through Meldahl into

the Markland pool,”’ éd. at 133, and concluded that ‘‘[a]ll this

ice—ice coming through Meldahl, ice coming from tributaries,

and ice forming in the Markland pool—had to go somewhere.”’

Id. at 131. Thus, according to the District Court, the passage of

ice at Meldahl combined with the failure to pass ice at Markland

to cause the disaster.

This finding is rooted in two separate negligence findings.

First, the Corps was found negligent for failing to coordinate ice

passage between Meldahl and Markland. Second, the Corps

was found negligent for failing to pass ice at Markland.

— A-20 —

The record is clear that ice-passing efforts at Meldahl were

not coordinated with efforts to manage the situation at

Markland. The District Court found that

[T]he lockmaster at Meldahl did not know what was going

on at Markland, that the lockmaster at Markland did not

know how ice was being passed at Meldahl, and that the

Division personnel were unwilling to override the decision

of District personnel in Huntington to maintain operations

at Meldahl, although the Division personnel had better

knowledge regarding the problems those operations were

causing downstream.

Id. at 63.

While the District Court’s conclusion that failure to coor-

dinate activities between Meldahl and Markland contributed to

the disaster may be correct, that failure is protected by the

discretionary function exception. The District Court found that

a ‘‘lack of oversight control’’ existed, but the Division person-

nel were exercising Oversight control when they were apprised of

the situation and decided not to override decisions made by

lower-ranking personnel. That action by Division personnel

may or may not have been made by considering all of the pros

and cons of allowing Meldahl to keep passing ice, but ‘‘[e]ven

the negligent failure of a discretionary government policymaker

to consider all relevant aspects of a subject matter under con-

sideration does not vitiate the discretionary character of the

decision that is made.’’ Myslakowski v. United States, 806 F.2d

94, 97 (6th Cir. 1986), cert. denied, 107 S.Ct. 1608 (1987). Divi-

sion personnel decided that they would not instruct Meldahl to

stop passing ice in order to ‘‘help out’’ Markland. Whether this

was the correct decision is not for us to second-guess. The pur-

pose of the exception is ‘‘to prevent the courts from intruding,

through the vehicle of tort suits, upon the decisionmaking

authority of the other branches of government.”’ Estate of

Callas v. United States, 682 F.2d 613, 620 (7th Cir. 1982).

— A-21 —

The second way the District Court’s decision was influenced

by actions taken at Meldahl is seen in the finding that the failure

to pass ice at Markland proximately caused the gorge. Essen-

tially, the District Court reasoned as follows: Meldahl passed

ice, and no jam formed above Meldahl. Markland did not pass

ice, and a jam formed above Markland. Therefore, if Markland

had emulated Meldahl and passed ice, no jam would have form-

ed above Markland.

The problem with the District Court’s analysis is that the

situation at Markland and at Meldahl should not be treated as

equivalent. As our discussion of the hydroelectric plant il-

lustrates, the problems at Markland were unique. Meldahl per-

sonnei never had to balance the competing interests of naviga-

tion and generation of electricity, because the Meldahl facility

did not have a power plant. Thus, the decision to pass ice and

methods of passing ice at Meldahl are not comparable to the

decisions made at Markland. Once the discretionary decision to

continue supplying the hydroelectric plant with water was made

at Markland, the courses of action open to Markland personnel

were far more limited than the courses of action open to

Meldahl personnel.

The low flows to the dam that resulted from the discretionary

decision not to divert water from the hydroelectric plant left the

Markland personnel with only three possible ways to pass ice:

through the auxiliary lock chamber, through the main lock

chamber, or by concentrating the flow to two gates and attemp-

ting to pass ice under those gates.

The District Court found that the auxiliary chamber could

not be used because it was inoperable due to Corps negligence.

We do not disturb this finding. The significance of this

negligence is small, however. The record indicates that use of

the auxiliary chamber to pass ice was ‘“‘of limited utility’’ and

“interfered with locking procedure.’’ Testimony of Patrick

Carigan, Tr. 45. Carigan also testified that ‘‘you shouldn’t lock

|

— A-22 —

vessels through [the main chamber] at the same time you’re

passing ice [through the auxiliary chamber] because it’s too

dangerous.’ /d. at 11.

The main chamber was not devoted to passing ice because the

decision was made to continue locking boats through the

chamber in an effort to maintain navigation. Lockmaster

Sheldon was instructed to ‘‘lock boats and ice.’” Tr. 3-321. Car-

igan testified that the view of the Louisville District was that

‘‘everyone’s interest would be better served by attempting to get

as many of the boats out of that pool as possible. . . .’’ Tr. 13.

He stated that the choice was ‘‘to lock rather than pass ice.”’ Jd.

at 14. Although some ice was passed along with boats that were

locked, the amount was small. The decision to maintain naviga-

tion at the expense of passing ice, however, is a decision the

Corps is uniquely qualified to make, and is protected by the

discretionary function exception. See Estate of Callas, 682 F.2d

at 620.

The District Court also held that the Corps’ failure to com-

pensate for the immobilization of the submergible tainter gates

by maintaining the structure in a condition that would permit

underflow passage of ice at relatively low flows was negligent.

Dist. Ct. opin. at 125. This holding is also in error. The record

was clear that Corps personnel could not concentrate flow to

two gates in an attempt to pass ice because of concern about

‘“scour.’’ The Corps’ weighing of the need to pass ice against

concern for the structural integrity of the dam is protected by

the discretionary function exception. The District Court cor-

rectly held that the creation of the condition that precipitated

the decision—the immobilization of the submergible gates—was

protected by the exception. Dist. Ct. opin. at 104-06. It was er-

ror for the Court to then hold that the Corps’ failure to com-

pensate for the immobilization was negligent. Again, the Court

slipped into the error of comparing Meldahl with Markland. At

Meldahl, the lockmaster was able to ‘‘walk the gates’’—concen-

trate flows for short periods at different gates—and thus com-

— A-23 —

pensate somewhat for the immobilization of the submergible

gates. At Markland, though, the flows weré simply not high

enough to pursue that tactic because much of the flow was

diverted to the hydroelectric plant.

III. CONCLUSION

We have held that only the negligence concerning

surveillance, training, and the auxiliary lock are unprotected by

the discretionary function exception. It is clear from the

District Court’s findings that these negligent acts, standing

alone, were not substantial factors in Causing the disaster. The

finding of causation is very close even when the Corps’ conduct

which we have found protected is included as a permissible

cause. Once the actions that are protected by the discretionary

function exception are removed from the causation equation,

the District Court’s finding can no longer stand.

This was a long and difficult ‘case, and the District Court

struggled valiantly with many complex issues. We hold,

however, that the District Court erred in its discretionary func-

tion decision, and that error led to an erroneous finding of

liability. Therefore, the judgment of the District Court is

reversed.

a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 85-3990/4036

86-3216

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),

Vv.

UNITED STATES OF AMERICA,

Defendant-Appellant (85-3990)

Cross Appellee.

Before: MERRITT and RYAN, Circuit Judges; and PECK,

Senior Circuit Judge.

JUDGMENT

(Filed Dec. 5, 1988)

ON APPEAL from the United States District Court for the

Southern District of Ohio.

THIS CAUSE came on to be heard on the records from the

said district court and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this court that the judgment of the said district

court in this case by (sic) and the same is hereby reversed.

ee

]

— A-25 —

Each party is to bear its own costs on appeal.

Entered By Order Of The Court

/s/ Leonard Green

Clerk

— A-26 —

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 85-3990/4036; 86-3218

IN RE: OHIO RIVER DISASTER LITIGATION

COMPLAINT OF WALKER TOWING CORP.;

PETITION OF B-R RIVER SERVICES,

Plaintiffs-Appellants/ Appellees,

vs

UNITED STATES OF AMERICA,

Defendant-Appellant/Cross-Appellee,

Defendant-Appellee.

ORDER

(Filed Feb. 28, 1989)

BEFORE: MERRITT and RYAN, Circuit Judges; and PECK,

Senior Circuit Judge

The Court having received a petition for rehearing en banc,

and the petition having been circulated not only to the original

panel members but also to all other active judges of this Court,

and no judge of this Court having requested a vote on the sug-

gestion for rehearing en banc, the petition for rehearing has

been referred to the original hearing panel.

The panel has further reviewed the petition for rehearing and

concludes that the issues raised in the petition were fully con-

sidered upon the original submission and decision of the case.

Accordingly, the petition is denied.

Entered by Order of the Court

/s/ Leonard Green, Clerk

— itt

JUDGMENT IN A CIVIL CASE

United States District Court

Southern District Of Ohio

Western Division at Cincinnati

Docket Number

C-1-78-0075, C-1-79-0002, C-1-79-0208

C-1-80-0028, C-1-80-0591, C-1-80-0592

C-1-81-0414, C-1-84-0477, MDL 420

Honorable S. Arthur Spiegel, Judge

(Filed Sept. 24, 1985)

IN THE MATTER OF THE COMPLAINT OF WALKER

TOWING CORPORATION FOR EXONERATION FROM

OR LIMITATION OF LIABILITY

Consolidated with

IN THE MATTER OF THE PETITION OF

B-R RIVER SERVICES (N.D. Ky. C78-0217-L)

Jury Verdict. This action came before the Court and a

jury with the judicial officer named above presiding. The

issues have been tried and the jury has rendered its verdict.

* Decision by Court. This action came to trial or hearing

before the Court with the judge (magistrate) named above

presiding. The issues have been tried or heard and a deci-

sion has been rendered.

IT IS ORDERED AND ADJUDGED

that judgment is entered in favor of petitioner Walker Towing

Company, Inc. and against the United States in the amount of

ONE MILLION FIVE HUNDRED THOUSAND DOLLARS

($1,500.00) together with interest from the date or dates of

disbursement. Judgment is entered in favor of petitioner B-R

River Services, Inc. and against the United States in the amount

— A-28 —

of FIVE HUNDRED SIXTY—NINE THOUSAND THREE

HUNDRED NINETEEN DOLLARS AND SIXTY CENTS

($569,319.60) together with interest from the date or dates of

disbursement.

Clerk

Kenneth J. Murphy, Jr.

(By) Deputy Clerk

/s/ Elizabeth Schaeffer Date 9/24/85

—~

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil Action No. C-1-79-208

MDL 420

IN THE MATTER OF THE COMPLAINT OF WALKER

TOWING CORPORATION, A CORPORATION, FOR

EXONERATION FROM OR LIMITATION OF LIABILITY

Consolidated with

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

IN THE MATTER OF THE PETITION OF

B-R RIVER SERVICES. No. C78-0217-L(J) ETC

TABLE OF CONTENTS

Page

eg on cca sss ccscescsvccec. 3

ON 4

yc cy ese sess sccascccees 5

et yc s eed ans sass cesees 7

A. Markland Locks and Bam - Overview....... 7

me.) euseorecal Backeround.................... 15

MOEN ce os tte ec neese 18

cm emneen SetUrY ECO................ 18

2. Ice Plans and Their Use at Markland ... 22

RE 33

1. Conditions Before January 16......... 34

10.

it.

— A-30 —

We tf . , 0 - ee een ay eee ye

Monday, January 16, 1978............

Tuesday, January 17, 1978 ............

I olen tee er erin ces eke

i. Pe EVIE 5s ks sane

ee Be | re

Di I oe hia ner ak wea a

ee RE en ew eee ee vee

a | rr ee rere re

Wednesday, January 18 ..............

TRUIGNY,, FORUM TF. 8. ks vv cccesy

Friday, January 20 PE EE ee

Se. FRG Cen BEN on wees eee

Srey, TOME BE ae ccc snes

SOOGUN, SMT Ee ena cree eee

oo eS es nr

Conditions at Other Projects ..........

a. Belleville Locks and Dam ..........

b. Racine Locks and Dam ............

Tie WHRIOCE VIG on ck sce a env ans

Tuesday, January 24 -

ie he ee eae

a. Activities at Markland Locks and Dam

th. Par ene. . so cack ase cee ene

oe. | on

c. Conditions at Meldahl .............

Mae. SH cos kc cad eke cae koxabecen

15. ‘*The Voyage of the Agnes Mae’”’ ......

16. The Downstream Claim ..............

a. Clean Ccal Terminals .............

©. The Lowisville Harbor .............

3s Re ANG oo eee eee

A. The Discretionary Function Exception ......

Sr EE cc Ck ob ona a See ee etek

A PR eas ov ieee ee ree ane kee kes

Rig SEMI ocala wie wate u a ees oh keke

ee Bee TOR ey Soe ree ce

BN ea erica hak een

WE CEE PO ee Cr are ene TERE DO ee ate

85

103

— A-32 —

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil Action No. C-1-79-208

MDL 420

IN THE MATTER OF THE COMPLAINT OF

WALKER TOWING CORPORATION, A CORPORATION,

FOR EXONERATION FROM OR LIMITATION OF

LIABILITY

Consolidated with

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

IN THE MATTER OF THE PETITION OF

B-R RIVER SERVICES. No. C78-0217-L(J) ETC

OPINION AND ORDER

SPIEGEL, J.:

These negligence cases arise under the Suits in Admiralty Act,

46 U.S.C. §§ 741-52. Petitioners Walker Towing Corporation

and B-R River Services, Inc. seek damages from the United

States for damages sustained by them and their shippers during

severe ice conditions on the Ohio River in January, 1978. Trial

was to the Court and included five weeks of testimony.

Thousands of pages of deposition testimony from witnesses

who did not testify at trial were considered, and more than thirty

volumes of exhibits were admitted into evidence. Exhaustive

proposed findings and conclusions have been submitted, as

have separate memoranda of law on discrete issues. These cases

thus stand fully submitted, and the following constitute the

Court’s findings of fact and conclusions of law, prepared in ac-

cordance with Rule 56(b), Fed. R. Civ. P.

— A-33 —

Il. SUMMARY OF HOLDING

For reasons which follow, we find and conclude that the

United States was negligent in several aspects of its operation of

facilities owned and operated by it, through the Army Corps of

Engineers. The gist of the negligence findings are that the

Government, under a duty to use due care in the operation of its

locks and dams, breached that duty by, inver alia, failing to pass

ice through Markland Locks and Dam as ithe ice came

downstream during the middle weeks of January, 1978; failing

to engage in routine surveillance of the reaches of the Ohio

River upstream from Markland; failing to train its personnel in

methods of handling and evaluating ice conditions; failing to

ensure that the dam was in fact capable of dealing with

reasonably forseeable ice conditions; and failing to intermittent-

ly restrict diversion of river flows to a hydroelectric generating

facility located on the Markland site so that ice could be passed

through the dam,

We also conclude that the acts or omissions detailed herein

constitute deviations from the appropriate standard of care and

were a proximate cause of the damages sustained by petitioners

Walker Towing Company, Inc. and B-R River Services, Inc.

However, we conciude that B-R River Services, Inc., was itself

negligent, and attribute to that petitioner sixty percent of the

responsibility for its recoverable losses.

Finally, we conclude that Walker Towing Company is entitled

to recover for its losses in the amount of $1,500,000.00, and B-R

River Services, Inc. is entitled to recover for its losses in the

amount of $569,319.60, both together with prejudgment in-

terest at the statutory rate from the dates on which petitioners

settled with their claimants.

lif. INTRODUCTION

The Ohio River runs 981 miles from Pittsburgh, Penn-

sylvania, to confluence with the Mississippi at Cairo, Illinois,

eae

— A —

and has, for nearly two centuries, played a major role in the

movement of cargo across the country. In furtherance of the

river’s role as a principle navigable waterway, the United States

Army Corps of Engineers has, since it was given authority to do

so in 1824, taken steps to render the river as navigable as

technology and resources permitted, through an extensive

canalization program.

In the early years of this century, the Corps installed more

than 50 dams along the length of the main stem of the Ohio.

These dams, called ‘‘low lift’’ or ‘‘wicket’’ dams (‘‘low lift’’

because of the short height of the projects relative to modern

locks and dams; ‘‘wicket’’ because they operate by means of a

series Of heavy timber wickets which are hinged to the riverbéd),

were rendered obsolete toward the middle of this century, and

the Corps began replacing them with ‘“‘high lift’’ or ‘‘non-

navigable’’ locks and dams. (‘‘High-lift’’ because each facility

would raise or lower a vessel 35 feet, much more than the wicket

dams: ‘‘non-navigable’’ because the dam proper is permanently

affixed to the riverbed, so that vessels may never pass Over the

dam itself; when wicket dams are lowered, navigation proceeds

over top of the wickets, bypassing the locks entirely.)

Since the late 1950s, the Corps has installed, and presently

operates, 16 high lift locks and dam structures on the Ohio.

Each such structure is massive by any standard. Markland

Locks and Dam, around which this case focuses, consists of two

lock chambers and 12 tainter (dam) gates. The auxiliary lock

chamber, which adjoins the left descending (Kentucky) bank, is

600 feet long and 110 feet wide. The main chamber is 1200 feet

by 110 feet. Each of the 12 steel tainter gates is 100 feet wide

and 42 feet high. The entire structure is approximately 1500 feet

wide, and the locks are capable of raising or lowering tows of up

to 15 barges and a towboat, 35 feet.

In the winter of 1978, a number of different circumstances

combined to set the stage for the disaster which is our concern

— A-35 —

here. After a lengthy period of fluctuating weather forces which

resulted in a substantial buildup of ice in the Markland pool,' of

the Ohio, a violent storm hit on January 26; following the bliz-

zard, a wall of ice and water moved downstream, sweeping a

number of tow boats and barges into or through Markland Dam

and causing losses mounting into the millions of dollars. Peti-

tioners aver, inter alia,? that the Markland project was

negligently operated in the days preceding the blizzard, thereby

causing their losses.

These cases were filed in 1978, 1979, and 1980. They were,

from May, 1980 until May, 1983, consolidated with numerous

other cases related to the events of 1978, under the auspices of

the Judicial Panel on Multidistrict Litigation, see 28 U.S.C. §

1407 (1976), as MDL-420. Following multidistrict proceedings

before Senior Judge David S. Porter of this Court, the under-

signed was assigned to act as trial judge in /n the Matter of

Walker Towing Corporation and M/V AGNES MAE, Civil Ac-

tion No. C-1-79-208, and United States v. Walker Towing Cor-

poration, Civil Action No, C-1-80-592. The third case here con-

solidated, B-R River Services, Inc. v. United States, Civil Ac-

tion No. C-1-84-0477, was transferred for purposes of con-

solidation for trial from Hon. Edward Johnstone of the

Western District of Kentucky in March, 1984, following remand

to that court from the MDL proceedings.

After consolidation, Walker Towing and B-R River Services

settled all claims with their shippers, and proceeded against the

United States for indemnification. It is the indemnity claims

which are presently under submission.

The ‘‘Markland pool’’ is the stretch of river upstream from

Markland to the next dam upriver.

Petitioners also assert claims for negligent failure to warn

navigators of potential hazards; negligence in the design and place-

ment of Markland Dam, and others.

eee

— A-36 —

IV. FACTS

The factual discussion of this case has, as noted, been the

subject of nearly five hundred pages of submissions by the par-

ties. Trial exhibits fill some thirty volumes, and the parties have

designated several thousand pages of deposition testimony,

primarily from witnesses who did not testify at trial. In short,

the volume of material is monumental.

A. Markland Locks and Dam — Overview

Planning for Markland Locks and Dam began in the early

1950s. Once the decisions where to put the structure and to in-

clude in it a hydroelectric plant to service parts of southern In-

diana were made, the Corps commissioned model studies of the

proposed structure to be performed at the Corps’ Waterways

Experiment Station (WES) in Vicksburg, Mississippi (Exhibit

16). The model studies, begun in 1953, revealed that the facility

would likely be subject to certain recurring problems which

would require care in operating the facility. One of the more

serious concerns addressed in Corps memoranda was the poien-

tial for problems in passing accumulations of ice and drift which

would float down on to the dam. The potential for problems

stemmed from a number of circumstances. One of the major

concerns was that the site chosen for the structure was im-

mediately downstream from a moderate right-hand (descen-

ding) bend in the river, the effect of which was to channel

floating debris into the lock approach area.

Recognizing the problem, the Corps considered various solu-

tions. One proposed solution was the inclusion of an “‘ice and

drift chute,’’ a cut through the lock wall to pass ice and debris.

That option was strongly recommended by certain Corps per-

sonnel during the design phase (Exhibits 156, 157, 158).

However, the chute was rejected, primarily because it created

potential hazards for navigations (Exhibit 1368B at 20 4c). In-

stead, the Corps decided to implement a type of dam tainter

gate which could be submerged below the surface of the water

-

a het mn

to permit overflow of ice and drift as it came downstream, as

well as being operable when raised up off the river bed. The

reasoning behind the submergibility feature was that while

relatively high volumes of water are essential to create suction

sufficient to pull floating material under a gate raised off the

river bed, much less force — and hence less water volume — is

necessary to pull floating objects over gates lowered beneath

water level.

Submergible tainter gates were a relatively new device at the

time of the Markland feasibility studies. Such gates had been

used for some time in certain Western rivers, but the Markland

project was the first on the Ohio which would incorporate them.

When submergible gates were included in the WES model, they

were found to work satisfactorily (Exhibit 136D at 11-12). The

gates ‘vere found to vibrate slightly when submerged (id.), but

the vibration was within acceptable limits. In fact, the Corps

was apparently well-satisfied with the concept of submergible

lainter gates, for such gates were incorporated into several high-

lift dams on the Ohio River. And, at least at Markland, the

submergible gates represented the only design feature specifical-

ly geared to passage of ice and drift; a 1957 design memoran-

dum (Exhibit 136) notes that ‘‘[flive submergible type gates at

Markland 1s [sic] regarded as a minimum to assure [sic] the

desired reliability of passing ice and the flexibility in passing

debris.’’ See also Exhibits 159, 160.

Construction on Markland commenced in the late 1950’s, and

the facility was largely operational by early 1963; a number of

other Ohio River high-lift structures also became operational at

about the same time. By the middle of 1964, operation of the

submergible gates at structures other than Markland proved

problematic. At McAlpine Locks and Dam, the next facility

downriver from Markland and located in the Louisville Harbor,

‘violent vibration of [a} gate broke out’’ when the gate was

operated in its submerged position (Exhibit 230A at € 4).

-- A-38 —

It appears that while certain corrective measures were altemp-

ted at some of the other facilities to overcome the submergible

gate vibration tendencies, no steps were taken at Markland save

to severely restrict use of the submergible gates. In February,

1966, however, a team of Corps employees visited the Markland

site ‘‘mainly to observe vibration tendencies of the submergible

gates and ice conditions.’’ Each of the five submergible gates at

the dam were operated in the submerged mode:

Gate | was lowered first and left on its pedestals. No

vibration was observed. Gates 6 and 7 were next lowered

to their pedestals and only slight vibration could be

detected, mainly by observing occasional small vibrations

of the hoist cables after being lowered about 2 feet. These

3 gates were left lowered on their pedestals without

noticeable vibration in this position.

Lastly, gate 8 was lowered io its pedestal with only slight

vibration on the way down, about the same as gates 6 and

7. A few minutes after resting on its pedestals, the gate

began to vibrate with sufficient serverity to be felt in stan-

ding on the walkway near the hoist and to rattle the door

of the hoist housing. The gate was immediately raised;

when up about a foot the vibration stopped; it was raised

another foot and left in that position without noticeable

vibration.

Exhibit 232 at 44 5-6. Because there is nothing in the record

which contradicts that exhibit, we find as a fact that there was

no significant problem with vibration of submergible tainter

gates at. Markland Dam. See also Exhibit 303 (Vibration of gate

7 at Markland found to be ‘‘of no consequence’’).

Despite the lack of a significant vibration problem at

Markland, dam personnel were not permitted to utilize the

submergible gates as even a backup, much less a primary, means

of passing ice and drift. Testimony from a number of Corps

personnel, including Norbert Whitlock, was to the effect that

operation of gates in the submerged mode was an unproductive

method of attempting to pass ice which had stopped or formed

as a Sheet upstream from the dam, as it tended to break off just

up from the gates and move no further. That testimony is to

some extent supported by the observations recorded in Exhibit

232, where stationary ice was noted to bridge over when at-

tempts were made to pass it over submerged gates. However,

that inadequacy, whether perceived or real, was not the reason

that the gates were not used in a submerged mode. Rather, we

conclude that the Corps responded to its concerns about signifi-

cant vibration at only a handful of submergible gates — in-

cluding none at Markland — by discontinuing the use of all

submergible gates at all structures on the Ohio River. It is essen-

tially undisputed that this action was taken without preliminary

recourse to then-available methods for testing and analyzing the

cause of the stress (testimony of Dr. Martin), although Corps

personnel did attempt to determine the cause. See Exhibits 161,

161A, 161B.

As noted, the five submergible tainter gates could also be

utilized as-raisable gates, meaning that all twelve gates could be

raised. A tainter gate can be visualized as a pie-shaped wedge

which pivots at its point, the gate face being a steel slab con-

nected to the wide end of each pie-shaped arm. A non-

submergible gate cas only be pivoted upward, thus permitting

water to flow under the gate, a submergible gate can pivot either

up or down. In the submerged mode, the lower edge of the

gate, and a portion of its Curved face, are lowered below the sill

which marks the river bottom; the pulleys and hoist cables

which support the gate are thus under constant tension as the

gate is always being supported. A non-submergible gate, on the

other hand, rests on a sill which wholly supports the gate, so

that there is less stress involved.

The sill upon which a gate rests (or with which a submergible

gate interfaces) is some 35 feet below the normal level of the

Markland pool. Thus, if a gate is raised up one or two feet off

ie EN oe

its sill, it is improbable that flotsam would be pulled down far

enough to pass under a slightly raised gate. While estimates

varied, we find, based upon testimony from Carroll Sheldon,

past Lockmaster at Markland, and others, that gates must be

raised at least 10-12 feet off their sills before enough suction will

be generated to draw floating ice or drift below the surface and

thus under raised gates. In addition, testimony established that

at least two adjacent gates must be so raised before movement

of flotsam occurs. =

Thus, the obvious problem with attempting to pass ice

through manipulation of non-submergible tainter gates is that it

can only be done when there is sufficient flow in the river —

enough water coming downstream — that two gates can be

opened enough to start drawing ice under without causing the

level of the pool to fall below navigable levels, an occurrence

which creates crisis in its own right.

In addition, because of long-standing concern regarding the

integrity of the riverbed immediately downstream from

Markland Dam, and the possibility of unacceptable scour (ero-

sion), the Corps had determined that concentration of flows on -

two adjacent gates was generally unacceptable as an operating

mode unless river flows were so high that all gates could be

opened equally, or unless the downstream pool was deep

enough that such fears could be put to rest.

Testimony established that while steps have been taken in re-

cent years to buttress the riverbed downstream from Markland

to withstand greater forces than were initially believed ad-

visable, no substantial steps were taken in that area prior to the

events of 1978. See also Exhibit 161.

Yet another difficulty attendant to the use of raised gates for

underflow passage of ice and drift was presented by the diver-

sion of water to the hydroelectric plant on Markland’s Indiana

shore. The plant was routinely operated at or near its full

capacity of 35,000 cubic feet per second (cfs) of flow, according

— A-41 —

to the testimony of Lockmaster Sheldon. He testified that on

the average, he assumes that one foot of gate opening on one

gate passes 5,000 cfs of flow; the 35,000 cfs used by the

hydroelectric plant, then, represented at least seven feet of gate

opening — and likely more — which was generally considered

unavailable to Markland personnel for underflow passage.

In short, the option of passing ice under raised tainter gates at

low flows was, as a practical matter, largely foreclosed by Corps

practice except under narrowly defined circumstances.

We leave the subject of tainter gates to examine the only other

potential ice-passing mechanism designed to be available to

Markland personnel. As noted, the structure includes two

locks. The main lock lies on the left descending (Kentucky) side

of the dam, riverward from the auxiliary chamber. As noted,

the main chamber is 110 feet wide and 1200 feet long, while the

auxiliary chamber, which is the shoremost portion of the facili-

ty, is 110 feet wide and 600 feet long. The principal method of

operating the locks is by way of mitre gates which swing out

from the walls of the lock chambers to close the chamber for

filling or emptying, and swing back into the lock walls to permit

vessel entry or departure. In addition to the mitre gates, each

lock has, at its upstream end and above the upper mitre gates,

what are called emergency leaves. Each emergency leaf is a

Straight, one-piece affair which lifts by way of hoist cables out

of a recess built into the riverbed. By pinning the upstream

mitre gates back into the lock wall and raising the emergency

leaf until it is just below the level of the upstream pool, a lock

chamber can be used to ‘‘skim”’ ice or drift. That is, as water

flows over the emergency leaf, it carries with it ice or drift, and

carries it on through the lock chamber and downstream.

Markland’s main lock chamber emergency leaf, due to a

design problem, had been constructed with only four inches of

freeboard (i.e., it rose only four inches out of the water at nor-

mal upper pool stage); although this design flaw did not make

~ Aad —

use of the main chamber for skimming purposes impossible, it

caused the Corps to discourage use of that leaf in general

because several practical considerations militated against its use.

In addition, use of the-emergency leaf in the main chamber

rendered navigation through the locks impossible, as it con-

stitutes a solid wall blocking entry to the lock. Thus, the

emergency leaf on the main chamber was never considered a

significant part of Markland’s ice-passing capacity.

In short, Markland operated from its inception under certain

significant operational constraints. The Corps knew when the

structure was designed that its location presented special pro-

blems with regard to ice and drift problems, in addition to the

obvious problems in that regard posed by any huge structure

which completely blocks a large river. In response to those con-

cerns, the Corps engineered into the facility submergible tainter

gates, expressly designed for passage of ice and drift at low

flows. The Corps then determined, based upon isolated in-

cidents, that those gates would not be used as submergible

gates. The structure was, at best, left with only one means of

dealing with ice when flows were below the level at which gates

could be raised up and ice pulled under — use of the auxiliary

chamber and its emergency leaf to skim ice as it came

downstream.

B. Historical Background

Fortunately, the years following the completion of Markland

presented little problem with ice accumulation at the dam. The

parties stipulated that in the years from 1963-76 (with informa-

tion unavailable for 1965, ‘66, and ‘67), ice accumulated in only

three winters. In 1963, Markland reported extensive ice cover

during the last week of January. In 1969, extensive ice occurred

on January 5 and January 14-18. In 1970, extensive ice was

reported intermittently during the last two weeks of January

(Stipulations of Fact at 6, Table 1). No evidence was adduced

as to how, if at all, Markland personnel dealt with ice in 1969 or

|.

1970; as noted above, Exhibit 232 notes only that in 1963, a par-

ty of Corps personnel sought to test the ability of the submergi-

ble tainter gates to induce passage of bridged, stationary ice

above the dam; no other record of the ice from 1963 was in-

troduced. In short, it appears that Markland operational per-

sonnel had little experience with major ice problems in the

period of 1963-77.

Several other historical points relating directly to Markland

bear mention before we discuss the winters of 1977 and 1978.

Petitioners’ Exhibit 161 is a February, 1975 letter from John R.

Bleidt, Chief of the Operations Division of the Ohio River Divi-

sion of the Corps of Engineers, to a power company official

concerned about accumulations of ‘‘drift and miscellaneous

trash’’ above the Markland hydroelectric generating plant. The

gist of the letter is that the problem was insoluble. After noting

that such accumulations ‘‘will probably continue to be a pro-

blem which will be costly to both you and the Corps,’’ Bleidt

noted that

[t]he dam was constructed with five submergible tainter

gates (1, 6, 7, 8 and 12) which were designed for passing

drift, etc. However, due to vibration problems at certain

Stages, the passing of a [sic] drift over the tops of these

gates had to be discontinued. At this time the five

submergible tainter gates had to be discontinued. At this

time the five submergible tainter gates are operated as non-

submergible tainter gates. As non-submergible tainter

gates, water flows under the gate rather than over the gate.

It has been our experience that a gate has to be raised ap-

proximately eighteen feet before drift above the dam is

sucked under the gate and flows on downstream.

I would also like to point out that the area just downstream

of the dam is protected by derrick stone. High concen-

trated velocities in these areas tend to wash the stone

downstream and thereby causes erosion of the riverbed in

ay ” ee

a

the area just below the stilling basin. Because of this pro-

blem, regulations governing the operation of the tainter

gates were established. It is our policy that all gates, except

gate No. 1 be opened within one to two feet of each other.

This means that for gates 11 and 12 to have an 18 foot

opening on each one, all other gates with the exception of

gate 1 will also have an 18 foot opening.

Id. Thus, the Corps knew throughout the operational life of

Markland that the structure was handicapped in its ability to

pass ice and drift; the Corps prohibited the use of the submergi-

ble gates in a submerged mode, and the concern about condi-

tions below the dam prevented the efficient use of the raised

gates for ice or drifi passage under any but the highest flows.

To summarize, then, the situation at Markland regarding ice

and drift passage in the middle years of the 1970s was as

follows:

— The Corps was aware that the location of the structure

posed particular problems with regard to accumulation and

passage of ice and drift.

— The submergible tainter gates, the principle ice-passing

mechanism built into the dam, were inoperative as a matter of

Corps practice.

— Concern regarding the potential for downstream scour

caused the Corps to institute the practice of not passing ice or

drift under raised tainter gates when river volume was below a

certain level.

— The auxiliary chamber emergency leaf could not be used

for skimming ice because the mitre gate latch pin was broken

(this was not mentioned above, but is discussed in/ra).

— The main lock chamber emergency leaf could not be used

for passing ice because it was designed with insufficient

freeboard to permit such operation.

— Als —

— The hydroelectric plant was routinely permitted to use the

first 35,000 cfs of river flow, thus greatly reducing (especially in

periods of low-to-moderate flows) the amount of water

available to the structure proper fer passage of ice and drift, a

condition which led to routine accumulations of large amounts

of drift above the structure and the hydro plant.

C. Ice Conditions

We now turn to examination of several matters pertaining to

ice. These include ice conditions on the Ohio in the twentieth

century, an ice gorge at Markland in 1963; ice conditions during

the Winter of 1977; and Corps documents dealing with ice

operations.

1. Twentieth Century Ice.

As part of its contribution to the Ice Committee Investigation

of the events of 1978, the National Weather Service generated a

table reflecting ice conditions on the Ohio River during the

period from 1874 through 1978 (Exhibit 179 at Exhibit 1). The

NWS found that

Ice has appeared in the Ohio River at Cincinnati in 62 of

the past 90 winters since 1874, 28 winters (31.1%) having

been without ice. While the formation of ice is directly

related to the temperature of the water which must be at or

near freezing, the official minimum atmospheric

temperatures at Cincinnati have averaged as follows: with

the occurrence [sic] of /ight ice 13°, heavy ice 9°, frozen

as

Light floating ice has usually been followed in about one

day by heavy floating ice; and the river has usually frozen

over after about three days of heavy ice. Actually,

however, considerable quantities of light ice have appeared

66 times and heavy ice followed it only 49 times; while

heavy ice appeared 15 times without light ice preceding it.

The river has frozen over in only 13 winters in the [period

1874 - 1964], always following heavy or gorged ice.

— A-46 —

Id. (emphasis in original). Of the 1302 days in which ice occur-

red on the river during the 90 years in question, 614 (47%) oc-

curred during January; of the 497 days of light ice, 48% were in

January; of the 492 days of heavy ice, 45% occurred in January;

of the 116 days on which the river was frozen over, 49% were in

January; and of the 197 days on which the river gorged, 51%

were in January. 18% of the ‘‘ice days’’ occurred in December,

and 34% in February. /d. These figures, of course, pertain on-

ly to the years prior to completion of the high-lift dams on the

Ohio. As such, their value is to some extent anecdotal; as

discussed at the outset, high-lift dams create deeper pools of

water between structures, and, as the parties have stipulated,

‘‘t]here is reason to believe that deeper water retards the

development of ice and formation of jams.’’ Stipulation, doc.

219, at € 2. The parties have further stipulated to a Corps-

generated chart which shows ice conditions at Markland for

most of the period from 1963-1978:

TABLE I

Extensive Extensive Extensive

(80-100%) Stationary Running

Year Some Ice Ice Cover Ice Ice

1963 Jan 25 Jan 26-31 Jan 26, Jan 27

28-31

1964 Jan 2 None None None

1965-1967 RECORDS NOT AVAILABLE AT THIS TIME

1968 Jan 16-17 None None None

1969 Jan 12 Jan 5, Jan 5, None

14-18 14-18

1970 Jan 11-15, Jan 22-24, Jan 22-24, Jan 27

20-21, 27-28 28

25-26

1971 Jan 17 None None None

—

1972 Jan 16 None None None

1973 None None None None

1974 None None None None

1975 None None None None

1976 None None None None

Id. at 46, Table I. As Table I demonstrates, there was at least

some ice on the river in seven of the eleven Januaries for which in-

formation was available, while extensive ice occurred in three of

those eleven years. Each time heavy ice appeared, it was sta-

tionary for the majority of itssenure. The Table suggests that

the last half of January is a particularly likely time for heavy ice

to build up on the river.

Ice in the river can cause substantial damage. In 1918,

for example, the Ohio River was closed by ice from Pitts-

burgh to the Mississippi River and at Cincinnati, ice caused

navigation to suspend operations for more than two mon-

ths. When the ice gorged and broke, all along the river,

there was substantial damage to towns, power plants,

boats and the Cincinnati Harbor.

Id. at {5. The winter of 1918 was, as review of the Ice Report

exhibit demonstrates, the worst since the canalization program

began, in terms of the duration of the period for which naviga-

ion was suspended and the damages which resulted from the

thaw. However, ice on the river was, as all witnesses agreed, a

foreseeable occurrence. Review of the exhibits shows that while

ice in the months of December, January, and February could be

reasonably expected, it is most likely to occur in January, and

we so find. We note that Mr. John Mitchell, former Chief of

the Corps’s Reservoir Control Center in Cincinnati, testified

that he authored statements for the Ice Committee Report to the

effect that ice appears on the Ohio on an average of two of

every three years; that heavy running ice appears on the average

of every other year; and that the river has frozen over (in Cin-

cinnati) on the average of one in seven years (Tr. I at 241).

— Aa8 —

Mr. Patrick Carigan, a civil engineer with the Corps as well as

an expert on the river (and Chairman of the 1978 Ice Commit-

tee), also testified that the following were reasonably

foreseeable (although not necessarily, in his view, predictable)

_vis a vis the Ohio-River:

— Formation of ice on the river during periods of cold

weather.

— Formation of ice during periods of low flows and cold

weather.

— Accumulation of significant amounts of ice.

— Movement of ice downstream tow ards Markland Dam.

— A continuous supply of water flowing downstream in

the main stem.

— Collection of whatever ice and drift came downstream

at the dam.

— The possibility of extensive running ice in the river, bas-

ed upon the historical observation of such occurrence twice

in 14 years prior to 1978.

— The need to lock boats through during periods of ice

and low flows.

(Carigan Test. July 31, 1984.) Following that litany, Mr.

Carigan testified that, in his opinion, a reasonably prudent

engineer charged with operation of Markland Locks and Dam

would take reasonable steps to minimize operational limitations

imposed on Markland by its design and by the operational con-

straints imposed upon it (id.). He also testified that reasonable

prudence would demand an operations plan which took into ac-

count the weather, hydraulic and operational variables

reasonably foreseeable at Markland.

We agree with Mr. Carigan and others who testified, and later

in this opinion conclude as a.matter of law, that the Corps hada

— Ae —

duty to use due care in formulating ice operations plans for

dealing with contingencies such as weather and operational

limitations at Markland. We now turn to examination of those

operational plans which were potentially applicable to operation

of Markland Dam.

2. Ice Plans and Their Use at Markland.

As discussed earlier, the Corps has, from the earliest stages of

the Markland project, recognized the need for ice and drift

passage at the structure. A memorandum from the Chief of the

Ohio River Division Engineering Division in Cincinnati to the

Louisville District Engineer dated October 13, 1964 and pertain-

ing to necessary revisions of the Markland operations manual,

mandated that

[a] new chapter should be added, or a paragraph added,

for each section on unusual conditions and the corrective

measures to be taken. Such as:

1. How to pass ice and debris with the vertical lift gate.

j. The operation of the dam gates for passing ice, also

low flows and the reasons therefore.

PX 165 at 5. A previous memorandum from the Deputy Divi-

sion Engineer, dated October 8, 1963 and pertaining to the

Markland manual, provides that

[t}he Operations Manual should contain instructions for

the operation and use of the emergency gates for skimming

or flushing the lock, for prevention of jamming of the up-

per mitre gate by drift or ice, and for using the lock as

spillway.

Id., 2d Memorandum at 2.

lt appears that Corps personnel responsible for revision of the

Markland operating manual did comply, no later than 1972,

|

— A-50 —

with the requirement of instruction regarding use of the

emergency gates for passage of ice and drift (id. at § XVII-2),

providing that

[s]ubmergible gate No. 7 has a tendency to vibrate when

submerged under some conditions. This gate should not

be used in the submerged position until this problem 1s rec-

tified. Any submergible gate which shows a similar

tendency should not be used in the submerged position.

However, review of the manual does not disclose any provisions

dealing with use of either the submergible or the non-

submergible tainter gates for passage of ice or drift. This seem-

ing omission contrasts with the operating manual for Meldah!|

Locks and Dam, which provides that the ‘‘submergible gates are

designed to allow lowering the gate to a depih which permits

flow at normal pool over the upper edge. This feature con-

templates skimming ice and debris from the surface of the upper

pool’? (PX 165A at § 6-1). The Meldah! manual further pro-

vides as follows:

d. Skimming operation. The removal of floating debris,

and ice from the surface of the upper pool is accomplished

by operation of submergible gates Nos. 1,6, 7,8 & 12. The

operation of one or more gates and amount of

submergence of each will be determined on the basis of ex-

isting conditions including extent of accumulation and

amount of flow. Normally, non-submergible gates will be

closed on either side of the gate used for skimming opera-

tions to facilities [sic: facilitate] inovement of debris or ice

to the submerged gate . . . . Skimming should be scheduled

to prevent any buildup of debris and ice.

We note, too, that the Meldahl manual provides detailed in-

structions comprising three pages of text regarding proper pro-

cedures for using the lock emergency gales for passage of ice

and drift (id. at § 4-05), while the Markland manual provides

only one brief paragraph addressing the point.

— AS)

Throughout the period after which Markland came on line,

Various ice regulations or instructions were provided to its per-

sonnel, albeit not expressly written into the manual. The first of

these is adocument entitled ‘*‘Division Circular No. 16-58”’’ (Ex-

hibit 113B). Dated October 14, 1958, the document purports to

be effective through October 14, 1962; however, a handwritten

notation on it reflects that it was a ‘‘file copy rec. 1-14-77’? —a

time When Markland was experiencing ice problems.

The parties disagree as to the relevance of Exhibit 113B to

operations at Markland. Petitioners assert that the document

was the then-controlling ice regulation, while the Government

urges that it is of only anecdotal value, and that the controlling

ice plan was one drafted in mid-January, 1978, dated January

23, 1978, and transmitted to the dams no earlier than the 23rd

(Exhibi. /13A). Because Exhibit 113A was not in the possession

of Markland personnel until after the conditions complained of

had been permitted to develop, and because the earlier ice

regulations were in fact on-site at the dam, we find that Exhibit

113B was, insofar as it did not expressly apply to low-lift dams,

applicable to operations at high-lift dams. We note, in this

regard, Mr. Carigan’s view that prudence dictated that sone

plan be generated to guide dam personnel in operating the struc-

ture in ice conditions; we also note that the copy of 113B retriev-

ed from Markland bears a 1977 file date. We thus find that the

document was, at the time these conditions arose, applicable to

operations at Markland.

The document, ‘issued to govern the lock and dam opera-

lion, patrols, collection and reporting of data, in all districts

during critical ice periods,’’ pertains in part to operation of old

wicket-type dams. However, petitioners persuasively argue that

al least two of its provisions are relevant to operations at high-

lift dams as well. The first provides that

fiJn order to facilitate the movement of navigation while

the dam is in operation, the ice forming in the approaches

— A-52 —

and around the gates shall be kept broken and the gates

maintained free of ice as far as practicable by use of the

maneuverboat and by lockage of ice from the upper to the

lower pool....

When sub-freezing temperatures and the formation of

ice make it hazardous to navigate the pool and it is pro-

bable that conditions will become worse, navigators in the

area should be warned to seek safety immediately in an ice

harbor. All practical warning, advice, and assistance shall

be given to navigation interests.

* * *

Ice patrols should be establis!:ed whose duties are as

follows:

(1) To collect pertinent information concerning ice

gorges.

(2) To collect data on damages to structures and

plant owned by both the U.S. Government and

private interests.

(3) To relay pertinent information to the District

Engineer.

(4) To take photographs.

(5) To collect other information desired by the

District Engineer.

Id. at 44 9 i-j, m.

The next bit of evidence pertinent to ice-control problems is

Petitioner’s Exhibit 211, an ‘‘order’’ dated February 11, 1964,

from the Deputy Division Engineer entitled ‘‘Ice Conditions on

Non-Navigable Type Dams.’’ The order first notes that ‘‘[t]he

ice conditions which have occurred in recent years give cause to

alert those responsible for operations of the non-navigable type

dams.’’ It then notes, excerpting a previous memorandum, that

a

‘[iJt is apparent . . . that operations to preclude ice

hazards should be clarified. Non-moving sheet ice gives no

problem. It is only when ice starts to move under natural

conditions (and efforts to move otherwise are of little ef-

fect) that hazard is created. The only safe operation then is

!o pass all ice through the dam as it arrives, and to have

essential provisions for such passage. Such movements

generally follow the thalweg of the stream. Movements

during low flow can be passed over one gate (7 to 8,000 cfs

at 7 feet depth). Increased flows with ice would be passed

over other adjacent gates. Any tendency for skimming of

ice by underfiow gates should be discouraged. The open-

ing required for passage of ice by underflow will vary with

the ice formation and tailwater-head relations. An assured

passage may be 50 percent opening, which in this project

would pass 26-30,000 cfs per gate. Failure to pass one-inch

thickness of ice can form a serious gorge, and ‘such has

happened on one occsion through operational failure to

provide passage of it. Fluctuations in pools are not con-

templated, but minor ones may result under some condi-

tions of passing ice on arrival.’

Overflow submergible gates have been provided to pass

ice and debris until tailwater builds up sufficiently to per-

mit safe under-gate passage. Concentration of heavy flows

with low-tailwater for under-passage is not contemplated.

In fact, the apron design does not provide for such condi-

ion. ...

Exhibit 211 at 1 (emphasis supplied).

As this exhibit demonstrates, the Corps was well aware of the

potential for severe problems resulting from accumulation of

ice. This memorandum followed by one year potentially serious

ice conditions at Markland, reported in Exhibit 508. In

February, 1963, ice formed in the Markland pool. Buildup was

enough so that ice problems extended as far as Cincinnati,

— A-S4 —

where, according to the exhibit, a gorge had formed. Markland

was still under construction at the time, and a coffer (construc-

tion) dam extended nearly halfway across the river. The draft

memorandum reflects that, from February 4 through February

6, gate manipulations were used to start ice moving.

On 4 February Gates 7, 8 and 12 were submerged and ice

immediately above dam as far as the upper end of guard

wall slowly moved and that immediately above lowered

gates went on over. The ice behind the coffer did not

move. This ice was mostly clear sheet ice.

On 5 February Gates 6, 7, 8 and 12 were carried

submerged throughout the day. Gates 9, 10 and 11

discharge was increased during the day to 20’, 18” and 16’

respectively. Very little additional ice passed during this

time. However, the gorge which was at Cincinnati moved

to the area from upper end of Warsaw to Big Bone Island.

On 6 February decrease in flow of water evidently from ice

jam made it necessary to close Gates 9, 10 and 11 to 12’,

14’ and 14’ respectively, this was between 5:00 am and 7:00

am. At 9:45 am Gates 11 and 9 were closed 5’ more to ef-

fect a raise in pool to break ice jam above Warsaw, later

Gate 11 was completely closed . . . to bring pool up to 12.0

an upper gage. (6, 7, 8 and 12) completely submerged.)

At 12:45 pm river level reached 12.2 on upper gage and

began opening gates to pass the ice gorge. Gate No. 9 was

opened to top of water. Ice began moving at Mile 518 at

1:00 pm. First ice passed dam at 1:20 pm, this was mostly

sheet ice, some passed over the submerged gates and other

through the raised gates.

Id. at 1-2. This exhibit, then, demonstrates that through careful

adjustment of submergible and underflow gate openings and

pool levels, Markland was able to handle ice conditions, an ice

gorge and attendant large amounts of ice without significant in-

cident. The author concluded that

—

The submergible gates in dam are adequate to handle scat-

tered flow of drift or scattered single layered ice, provided

that other gates do not have too large an opening. If runn-

ing a large amount of water, the currents carry to these

gates and drift or heavy ice is sucked under the raised

gates. Under heavy gorged ice conditions the submergible

gates will not handle this type ice.

Id. at 3.

As we read this document, it suggests that the submergible

tainter gates performed as they were supposed to. When the

river flow fell too low for passage of ice beneath raised gates,

the submergible gates were used, and were able to pass floating

ice upstream of the dam. The submergible gates could not be

used to pass large amounts of ice at high flows, or to pass solid

ice; the reason for this is reflected in Defendant’s Exhibit 527.

This document was prepared by David Beatty, Chief of the

Hydraulics and Hydrology Branch, Engineering Division of the

Louisville District of the Corps. It demonstrates that a gate

raised off the river bed so that water passes under it will pass a

greater volume of water per foot of gate opening than a gate

submerged below the surface. Of course, water at the bottom

of the river is under greater hydraulic force than that on the sur-

face, and so more will pass. Thus, the submergible gates were

shown to be able to pass ice and drift to some extent at low

flows.

Consideration of the report of February, 1963 (Exhibit 508)

with the 1964 ice operations memorandum (Exhibit 211) sug-

gests that the two mesh fairly well. As provided in Exhibit 211,

ice movement ‘‘during low flow [was] passed over’’ the

submergible gates. Ice was not passed by underflow gates until

the flows returned to a level at which such Passage was prac-

ticable. Once the ice was moving, it was passed ‘‘as it arrives,”’

and the dam ‘‘[had] essential provisions for such passage.’’ The

only significant variance was that the project was operated so as

— A-56 —

to raise the level of the upper pool a few inches to try to break

loose the gorged ice upstream, a practice called ‘*bouncing the

pool.’? In sum, the 1963 ice operation, while not flawless,

worked well enough that the ultimate conclusion regarding the

experience was that ‘‘[t]here were no significant operating dif-

ficulties’? (Exhibit 508 at 1).

Despite this fact, it does not appear that the submergible

tainter gates would again play a part in ice or drift passage at

Markland. At a 1964 conference, submergible gates were

debated:

there was some discussion over the need for submergible

gates and their effectiveness in passing ice and prevention

of ice jams at the dams. OCE [Office of the Chief of

Engineers] representatives pointed out that attempts to

pass ice with submergible gates at Greenup and Markland

had not been very successful because currents strong

enough to move packed broken ice could not be produced

with flow over the submergible gates. ORD [Ohio River

Division] representatives stated that ice could be passed

with lowered submergible gates as it reached a dam if pro-

per operation was followed at the beginning of an ice run.

Pittsburgh District representatives disagreed with this view

and stated that at Emsworth Dam, where ail of the gates

can be lowered 3 feet, ice jams and packs would form

above the dam regardless of how the gates were operated.

No agreement was reached... ..

Exhibit 507 at 5.

Two months after this conference, in September, 1964, OCE

personnel determined that ‘‘satisfactory operation of submergi-

ble gates cannot be assured, and they should not be provided at

Ohio River Dams’’ (Defendant’s Exhibit 554). The exhibit is

captioned ‘‘Elimination of Submergible Tainter Gates al

Belleville Project,’’ and concludes that such gates should not be

included in a then-planned (but not yet constructed) Ohio River

— A-$7 —

dam. The Government would have us find that **[p]ursuant to

[Exhibit 554], submergible gates were not operated at the early

high lift dams, and were not provided at Belleville, Cannelton or

any subsequent high lift dam’’ (Proposed Findings, etc. of

March 7, 1985 at 28). We disagree with the first portion of that

proposed finding, for the memorandum does not purport to ad-

dress operation of submergible tainter gates at existing high lift

dams. Rather, we find that the memorandum applies only to

projects then on the drawing board. The point is, however,

likely mooted by the fact that reliable Corps records, as well as

credible testimony, demonstrate that, during the summer of

1977, the submergible tainter gates were rendered physically

nonsubmergible by installation of concrete and steel stops de-

signed to prevent submergence.

As noted above, there occurred, during the winter of 1976-77,

severe ice conditions at Markland. The summer and fall of 1976

were extremely dry, resulting in reduced river flows. We excerpt

the Ice Committee Report:

[R]ecord-breaking low temperatures and low precipitation

during November and December brought steamflows to

record lows by the end of December and ice had formed

along the major northern and eastern Ohio River

tributaries . . . . January 1977 saw a worsening of condi-

tions as extreme cold resulted in massive ice formation on

most of the basin’s streams.

Needless to say, navigation was severely impacted by ice

everywhere on the Ohio. However, there were two distinct-

ly different kinds of ice problem. On all of the newer

navigation pools upstream from Uniontown Dam, bank-

to-bank sheet ice kept tow movements at a slow pace.

Although some companies ceased operations, many con-

tinued to operate, slowly but steadily, breaking their way

through clear, sheet ice. This action, in and of itself,

resulted in some minor layering in each of the new pools.

— A-58 —

However, absent was the massive layering that subse-

quently produces the kind of jagged, jumbled concentra-

tion of ice that jams at the first hint of a constriction.

Unusually low steamflow had resulted in extremely low

velocities-velocities too low to force broken ice up over or

down under the stationary ice. Some ice would be displac-

ed as tows broke their way through and the river would

refeeze (sic) behind the tows, but the major volume of ice

remained in place, frozen to banks.

Exhibit 192 at Appendix 1, p. 4. Later in January, an ice gorge

formed at Carrsville, Kentucky, downstream from Louisville,

due to rainfall and ‘‘uncontrolled runoff over southern portions

of the basin’’ leading to increased steamflows and accumulation

of ice.

Review of-the records generated during and after the events

of 1977 demonstrate that the ice which formed at Markland and

other high-lift dams on the upper Ohio River was bank-to-bank

sheet ice which formed locally. Because of the low flows and

velocities extant, the ice did not move for several weeks. As

noted above, Corps ice strategy provides that ‘‘[n]on-moving

sheet ice gives no problem”’ (e.g., Exhibit 211 at 1); thus, the ac-

tion taken at Markland and other high-lift dams on the Ohio in

simply leaving the ice to its own devices and passing it as it

began to break up was appropriate.

Before turning to the events of the winter of 1977-78, we sum-

marize the foregoing. Markland was designed to have the

following mechanisms for handling ice problems: submergible

tainter gates; raisable tainter gates; lock chamber emergency

leaves. The submergible gates were placed in the dam especially

for use during low flows, j.e., when the nonsubmergible gates

could not be raised far enough off their pedestals to pass ice

without risking loss of pool. The emergency leaves were useful

for passing moving ice in the lock approach areas, but were too

far toward the Kentucky shore to pass all ice moving

— A-59 —

downstream. In addition, the main chamber emergency gate,

by virtue of its inadequate freeboard, was effectively unusable

for ice passage. Finally, in 1976, a large latch pin essential for

use of the auxiliary chamber emergency leaf became damaged,

and the chamber was unavailable for ice or drift overpassage

until January 19, 1978. At that point, ice had frozen the

chamber solid, and a crippled boat was embedded in the

chamber.

D. January, 1978

After the low flows of 1976 and continuing into the summer

of 1977,

the weather did a flip-flop and relatively wet conditions

prevailed through December. Although precipitation was

near normal in December, streamflows averaged con-

siderably above normal because of rainfall excesses during

the previous several months. Air temperatures were

somewhat above normal in November and below normal

in December. Although a new record low of -3°F was

established at Cincinnati for the 6th of December, devia-

tions from normal were not particularly noteworthy for

the month as a whole.

Tributary storage reservoirs had been effective in aver-

ting moderate flooding in several principal Ohio River

tributaries during December. Much of the excess reservoir

storage had been released and steamflows were ap-

proaching ‘normal’ by the end of the month. However,

below normal temperatures had begun to produce ice, par-

ticularly 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. .

Exhibit 179 at Appendix 1, p. 6.

—e

During the early part of January, the Ist through the

9th, flows in the Ohio River at Markland Locks and Dam

ranged from approximately 100,000 to 200,000 cfs. From

the period of 10 through 12 January, the flows increased to

almost 270,000 cfs. Then from the 13th through the 25th,

the flows decreased from 270,000 to approximately 87,000

cfs. Then from the 25th to the 30th, due to heavy rainfall

throughout the Ohio Valley, heavy runoff was experienc-

ed: and flows increased from 87,000 to approximately

450,000 cfs.

Id. at Exhibit 6, p. 1.

With that introduction, we turn to close examination of the

weather and river conditions for the period January 5-28, 1978,

as well as circumstances at Markland and Meldahl Locks &

Dams, with additional detail or digression as needed. The

primary variables we will address include weather conditions

(temperature, precipitation, and forecast); river conditions (in-

cluding flow at Markland and Meldahl; ice conditions; and river

forecasts); lock and dam operations (including gate settings, ice

passing activities, and lockages); and general observations as

necessary.

1. Conditions Before January 16

Because January 16th — the date when ice conditions began

to significantly worsen — presents a natural line of demarca-

tion, we first provide a general view of the conditions on the

river prior to that date.

From New Year’s Day through about January 7, river flows

were slightly below average, but well above the record low flows

experienced in 1977. As noted in the Ice Report excerpt quoted

above, flows greatly increased beginning about the 7th, and

went as high as 250-270,000 cfs by the 12th. From the 12th

through the 16th, flows dropped back down, crossing the

average mark of about 138,000 cfs on the 16th.

— A-61 —

Temperatures at Cincinnati for the same period were

somewhat below average, but not as low as those recorded in

1977. The temperature on New Year’s Day was approximately

21 °F, with a rise to about 23 °F on the Sth, falling to about 16°F

on the 12th, returning to about 20°F on the 16th.

Markland’s precipitation records (Exhibit 147) reflect that ap-

proximately nine inches of snow fell during the first two weeks

of the month; of course, subfreezing temperatures prevented

the snow from melting, and so it accumulated.

Markland was running between 10’ and 30’ of gate openings

between the Ist and the 8th of January, with between 29,600

and 31,800 cfs being diverted to the hydroelectric plant. Begin-

ning late on the afternoon of the 8th, gate openings were in-

creased to 48 feet, and steadily increased to 120 feet on the 11th

and 12th; on the afternoon of the 12th, gate openings were

reduced to 108 feet and continued down to 42 feet on the after-

noon of Sunday, January 15. During this period, the hydroelec-

tric plant was receiving a constant 23,800 cfs. (This information

is gleaned from Exhibit 121, the Markland operations log.)

a. The First Ice.

As part of their standard operating procedure, lock personnel

are required to maintain records of their observations of ice

conditions. To facilitate ice reporting, the Corps has generated

an “‘ice code,”’ reflected in Exhibit 155. A coded ice report in-

cludes five elements: amount (a one-digit number reflecting ten-

ths of river surface covered); type (a letter code reflecting

whether the ice is running, stationary, jammed, locally forming,

or affixed to the shore); thickness (in inches); ‘‘structure’’ (a let-

ter designation reflecting the physical integrity of the ice); and

distance upstream reported in miles. Thus, an ice code

‘*5-A-2-C-1”’ would indicated (sic) that five-tenths of the river was

covered with stationary ice, two inches thick; that the ice was

clear; and that it was observed to continue for one mile

upstream from the dam.

— A-62 —

The first ice coding at Markland appears in the log during the

morning of Saturday, January 14. The code is **1-S-Y2-T-X”’

— one-tenth of the river covered with shore ice, 2" thick, *‘rot-

ten,’’ and extending as far upstream as observation permitted.

The code for the 15th was ‘‘1-R-1-T-X,”’ indicating one inch of

rotten ice, extending out of sight, and moving with the current.

The situation at Meldahl was rather more serious during the

period from the tenth through the fifteenth than that at

Markland.

Ice was first reported at Meldahl on 10 Jan. 1978. The

river was rising due to rainfall upstream of the project.

Heavy ice was accumulating on the upstream side of the

dam and in the upper approach. The auxiliary lock

emergency gate was first placed into operation on 11 Jan

1978 on an as-needed basis to pass ice to keep the upstream

approach cleared for navigation. Heavy ice continued to

build up on the dam and in the approach and starting af-

fecting locking operations on 12 Jan. The river crested and

started to decrease and later that day, ice conditions

became more critical in the upper approach. By 15 Jan, it

was necessary to continually use the auxiliary lock

emergency gate to pass ice. Approach conditions became

significantly worse on 16 Jan. . .

Exhibit 179 at § 3-1. The Meldahl logbook (Exhibit 129) reflects

that ice was first observed on the tenth, reported as ‘*5-R-1-B,”’

meaning 50% coverage, running, one inch thick, breaking. The

code for the 11th is ‘*7-R-12-B,’’ meaning that the ice was the

same as on the previous day, but covered 70% of the river. On

the 12th, the report was 5-R-1 /%2-B-X; thus, the ice covered had

been reduced to 50% of the river surface, and extended

upstream out of sight. On the 13th, the code was ‘‘5-R-1

\4-L-X,”’ indicating that the ice was beginning to form into

layers, but was still covering only 50% of the river. Those con-

ditions prevailed through the 14th; the code for the 15th reflects

|

— A-63 —

“9-R-1 2-L-X,”’ indicating 90% coverage, but with ice still

running.

As this initial period closes, then, the following had occurred.

Ice began accumulating at Meldahl on January 10; the next day,

Meldahl’s auxiliary chamber emergency leaf was placed into the

ice-passing mode (i.e., the mitre gates were pinned into their

recesses, and the emergency leaf was hoisted out of its slot in the

river bed so that its top was out of the river, but ready to be

lowered for skimming operations); and ice passage began on an

‘‘as-needed”’ basis. By the 12th, according to the testimony of

Meldah! Lockmaster Raymond Dunaway, ice was running; at

least some of it, we conclude after review of Mr. Dunaway’s

testimony, was being passed through the auxiliary chamber. Ice

did not begin to appear at Markland until the 14th, and that was

only shore ice; on the 15th, running ice appeared at Markland.

However, review of the Markland lock operations log (Exhibit

149) demonstrates that, at least at the times gate openings were

recorded, no ice was being passed. Thus, we find that by the

15th, when running ice was reported extending out of sight, the

ice was only “‘running”’ until it arrived at Markland, at which

point it as (sic) stopping and beginning to accumulate.

2. Monday, January 16, 1978

The Louisville’ forecast for the 16th was accumulation of

three to four inches of new snow, with the high temperatures be-

ing in the high twenties; a travellers’ advisory issued (Exhibit

264 at 45).

At Markland, ice conditions were coded as **8-R-2-L-X’? —

80% coverage; running; 2 inches thick; extending out of sight.

The entry in the lock log for 0800 hours reflects that the dam

was running 42 feet of gate opening, and diverting 23,200 cfs to

’ We use the Louisville forecast throughout as the best available in-

dicator of the forecast for Markland, some seventy miles upstream.

<x A

the hydroelectric plant. The entry also states that ‘‘M/V

PEGGY MAYS stuck in ice above lock. Ice moderate. . . . Ice

gorged from Craigs Creek to Markland Lock. Very heavy ice

and snow.’”’ The log entry for 1600 reflects, inter alia, that

hydro plant consumption had been reduced to 20,000 cfs, and

that lock personnel were ‘‘Washing Ice Through Gat (sic)

#3#4#5 from 400 P.M. to 800 P.M.’’ (Exhibit 121 at 1/16

entry). River flow was approximately 138,000 cfs (Exhibit 179,

Ice Report, at Ex. 4).

The entry regarding passage of ice through gates 3, 4, and 5 is

somewhat perplexing. There was unanimity among the

witnesses that ice could only pass under raised gates when those

gates were at least 12-14 feet off their sills; government

witnesses uniformly testified that Markland personnel were not

to raise gates to underflow passage positions unless they either

coordinated the process with their superiors in the Louisville

District Office, or there was sufficient fiow to raise a// gates 12

feet or more off their sills. Review of the gate-position log for

January 16th (Exhibit 122) reflects that as of 8:10 p.m. on the

16th, the dam gates were open a /otal of thirty-seven feet —

barely enough to permit ice passage through gates 3-5 with all

other gates closed. The situation was not addressed by the

Markland personnel who testifed at trial. The possibilities

would be that ice was passed over submerged gates; that flow

was concentrated between the three gates mentioned; or that the

entry is in error. We are, by virtue of the lack of testimony on

point, unable to find that one or the other of the events occur-

red; we simply note that the question exists. At any rate, the

documents do not suggest that any substantial amount of ice

was passed through the gates.

John Ryle, Assistant Lockmaster at Markland, testified that

the ice on the 16th was ‘‘big sheets of ice,’’ but that it was still

‘‘running.’’ Again, we observe that the government does not

aver that (perhaps other than during the four-hour period noted

in the log, which cannot be reconciled with Corps procedures

— A-65 —

and flow levels), ice was being passed through Markland during

this time; we thus conclude that the ice was ‘‘running’’ only as

far as the Markland project, where it was stopping as it came

against ice already built up from the dam. Mr. Ryie also

testified that he had no personal knowledge regarding the nota-

tion of a gorge between Craig’s Creek (located about three miles

upstream from Markland) and the dam.

In short, the picture regarding conditions at Markland on the

16th is not completely clear. However, based upon the entries

in the log, as well as Mr. Ryle’s testimony, we conclude that as

of that date ice had accumulated in significant quantities, and

that it was running down as far as the Structure and then

building back upstream as it stopped against the dam. However,

it appears that there was still movement in the ice within visual

range of the dam, in that it was reported as ‘‘running.’’

Conditions at Meldahl on the 16th were significantly worse

than at Markland:

Approach conditions became significantly worse on 16 Jan

and two tows became trapped and were unable to

maneuver in the ice pack which now extended 8 to 10 miles

upstream of the dam. Passing of ice was stopped to pre-

vent drawing the trapped tows down onto the dam and the

! ockmaster requested all other downbound tows to stay

upstream of the ice pack until a channel could be cleared.

This action was taken to prevent additional tows from

becoming trapped in the ice pack. The situation could be

summarized as follows: traffic not moving; river flows

decreasing; ice pack continuing to expand; and

temperatures staying well below freezing. Because of these

conditions, a decision was made that a method of opera-

tion had to be developed and implemented to maintain

navigation Once the two trapped tows were freed. The

method of operation adopted consisted of using volunteer

commercial towboats both in the upper approach and

— se oo

upstream of the dam to continually work the ice. This ice

was then passed continually through the dam tainter gates

and through the auxiliary lock emergency gate. This

method of operation proved successful in maintaining

navigation and was used during the balance of the adverse

ice conditions at Meldahl.

Ice Report, Exhibit 179 at Exhibit 5, p. 3-1. The Meldahl log

entry for the 16th reflects the following. Ice code: 8-R-2-L-X

(80% coverage, running, 2’’ thick, layered, extending out of

sight). The temperature ranged from 2° to 15°F. Throughout

most of the day, the dam ran 47 feet of gate opening, spread

evenly across 12 gates. However, the 11:15 p.m. entry reflects

that the gates were manipulated into an underflow ice passage

configuration: Gates 1, 2, and 3 closed; gate 4, 3 feet; gate 5, 7

feet; gates 6 and 7, 10 feet; gate 8, 4 feet; gate 9, 3 feet; gate 10,

4 feet; and gates 11 and 12, closed.

Markland locked nine vessels upstream into the Markland

pool, and one vessel downstream into the McAlpine pool (Ex-

hibit 140). Meldahl was able to lock only two upbound and one

downbound tow (Exhibit 129).

On the 16th, then, the situation was as follows. Meldahl was

continually skimming ice through the auxiliary chamber, and

was beginning to use underflow passage configurations on the

dam gates. In addition, Meldahl Lockmaster Dunaway had

developed ‘‘a method of operation . . . to maintain navigation”’

through the lock. That method was as follows. Vessels were

asked by the lockmaster to participate in activities designed to

keep ice moving through the auxiliary chamber and through the

dam. The vessels were instructed to ‘* ‘[p]Jut the head of [their]

tow[s] in against the [Ohio] bank, this hill, and try to shove it to

Michigan’ ’’ (Dunaway Depo. at 166). in less scientific

parlance, the boats were to nose into the bank and accelerate

their engines. The effect of this strategy was that the turbulence

caused by the revving propellers (‘‘wheel wash’’) served to

—

aereate the water, and to create turbulence sufficient to break

up ice immediately upstream from the structure so that it could

pass through into the Markland pool. The lockmaster also had

another vessel policing the downstream aspect of the structure,

using its wheel wash to prevent ice from being carried back

upstream by prevailing upstream winds.

3. Tuesday, January 17, 1978

The Louisville forecast on the 17th was for

[h]eavy snow today... [sic] An additional four or more

inches of snow with a total depth of snow 18 [to] 20 inches

by this afternoon . . . Highs today in the upper 20s.

Snow tapering off to flurries tonight with the lowest near

20 degrees.

Becoming partly cloudy and continued cold Wednesday... .

high near 30.

Winds . . . Northeast 10 to 15 MPH gusting to 25 MPH

during the afternoon becoming northerly tonight.

River flow at Markland on the 17th was 110,300 cfs — down

approximately 20,000 cfs from the 16th. Snow cover at

Markland has accumulated to 9 inches, and the ice code for the

17th was ‘*8-R-2-L-X’’ — 80% coverage, ‘‘running,’’ 2 inches

thick, layered, and extending out of sight of the dam. Gate

openings across the dam were down to 35 feet at midnight,

decreasing to 29 feet by 0800 and 27 feet by 1601 hours. The log

entry beginning at 8:00 a.m. reflects that ice was ‘‘very [sic]

heavy,’’ and that the M/V JESSIE BRANT took nearly seven

hours to lock through the main chamber. The entry beginning

at 4:00 p.m. reflects that efforts were being made to wash ice

through the main chamber; Mr. Ryle testified that the attempt

was to have a vessel push as much ice as it could into the

chamber; the chamber level was lowered to lower pool level, and

the ice was locked through; the chamber was rewatered, and the

— A-68 —

vessel then locked through. There was agreement that this is the

least effective procedure of all those ice passing possibilities in-

volved in the structure. Again, we note our observation that

while the ice code reports ‘‘running’’ ice, the exhibits reflect

that, with the exception of the ice which was passing through

the main chamber ahead of a vessel, ice was only running down

as far as the dam, where it was stopping against, or running up

under, ice which had already stopped at or short of the struc-

ture.

The river flow and velocity forecast for the days following the

17th were for continuing declines, with the predicted flow for

the 18th and 19th being 94,600 and 88,900 cfs respectively.

At Meldahl, the 17th was a day of continued ice difficulties.

The ice code was ‘‘10-P-3-L-X’’ — 100% coverage, stopped, 3

inches thick, layered, out-of-sight — in the morning, and

**10-P-4-L-X’’ — an inch thicker — later in the day. The low

temperature was 3°, the high 25°. At 3:00 p.m., the dam gates

were manipulated into underflow ice passage configuration —

gates 1-5 closed; gates 6-8 raised 12 feet each; gates 9-12 closed;

the gates were readjusted so that the openings were distributed

evenly across the dam by 6:00 p.m.

‘

Thus, on the 17th, Meldahl was passing ice ‘‘constantly’’

through the auxiliary chamber; there was only one tow locked

through Meldahl locks on the 17th, and so the auxiliary

chamber was available for virtually all of that date. In addition,

Meldahl was passing ice through its gates during at least one

period on the 17th.

At Markland, ice was coming down from Meldahl and runn-

ing as far as the project. Tows were still able to transit the

locks, although in small numbers (three upbound and one

downbound), and ice conditions were worsening. The record

does not reflect that Markland personnel were taking steps to

prepare for, or seriously considered, the possibility that ice con-

ditions would continue to worsen, despite the predicted continu-

— A-69 —

ing cold weather and the fact that Meldahil was continually pass-

ing additional ice into the Markland pool.

4. Digressions.

At this juncture, we briefly consider three topics: pool

surveillance, Corps of Engineers organizational hierarchy, and

ice formation and characteristics.

a. Pool Surveillance.

As briefly noted above, the ice operations directives (e.g. Ex-

hibit 113B) distributed during the 1950s specifically provided

for establishment of ‘‘ice patrols’? to monitor the formation and

conditions of ice in each structure’s pool (the reach of river bet-

ween a Structure and the next structure upstream). Similarly,

the January 23, 1978 ‘‘ice plan’’ (Exhibit 113A) opens with the

instruction that ‘‘[dJuring the period of cold weather,

Lockmasters shall observe closely the formation of ice in their

pools... .’’ The purpose of such patrols is obvious; without it,

those at a given project — as well as their superiors, for whom

project personnel are the principal means of gathering informa-

tion — are unable to understand conditions more than a few

miles upstream of the project, and are thus handicapped in

assessing conditions as they develop and in planning for con-

tingencies which might be reasonable predictable.

At Markland in 1978, actual surveillance existed only by way

of dam personnel standing on the structure itself and using their

naked eyes or binoculars to view the stretch of the river visible

therefrom. During trial, we visited the Markland project;

because the structure sits at the foot of a bend, visibility is

limited to the stretch of the river just above where the bend

Starts to sweep left (looking upstream) — a distance of some one

and one-half miles (see Exhibits 333 at 1; 302F). Lockmaster

Sheldon testified that his home is twenty-two road miles from

Markland, and that he would observe the pool when driving to

or from work; however, the road leaves the river for much of

«i —

that distance, and Mr. Sheldon’s work schedule was such that

his only opportunity to observe the river during daylight was on

his way home in the afternoon. In addition, as we discuss infra,

from January 21st on, he lived at the structure full-time, and

was thus never able to observe the pool upstream of the bend

above Markland.

Other means of gathering information were listening to radio

\ broadcasts from towboats coming downstream. Mr. Sheldon

testified that his transceiver at the project would receive

transmissions from tows up as far as Big Bone Island, some fif-

teen miles upstream, under certain weather conditions, but

could only send messages about three miles upstream. Other

witnesses thought with Mr. Sheldon’s assessment of the range of

the radios at the project conservative, but at any rate, transmis-

sion Outside the general vicinity of the dam was impossible. Fur-

ther, Mr. Sheldon testified that he discounted information

received by radio from towboats (Tr. I at 782); he did not testify

that he routinely contacted towboats coming downstream to

gain information regarding conditions in the pool. In sum, we

find that simply monitoring the radio conversations of towboats

was not an effective way of monitoring ice conditions in the

pool as they developed, particulary as the Lockmaster himself

did not consider the source to be especially reliable.

The surveillance picture at Markland, as is true of many

aspects of this case, compares unfavorably with that at Meldahl.

Lockmaster Dunaway testified that he routinely drove upriver

to at least the midpoint of the Meldahl pool ‘‘[f]or peace of

mind... you want to see what’s going on. I like to see what’s

going on above, you know? You know, coming down the

river.’’ In addition, personnel from the Huntington District of

the Corps, which oversees operation of Meldahl and other dams

on up to Pittsburgh, conducted overflights of the river in order

to get a better picture of what was going on in the various pools;

Mr. Dunaway was supplied information generated during those

flights.

— $$ —

—AT1 —

Thus, Markland personnel, the record reflects — and we so

find — made only minimal efforts to find out ‘‘what’s going on

above;’’ they were not well-informed as to the extent of the ice

passage occurring at Meldahl, and they were uninformed as to

the extent of ice collecting and forming in their pool, even just a

few miles upstream.

b. Corps Hierarchy.

We piece the following together from the testimony of a

number of Corps witnesses. Defendant initially proffered, but

did not offer into evidence, Exhibit 501, a Corps organization

chart; however, as it was not admitted, we do not utilize the ex-

hibit.

The senior official in the Corps, the Chief of Engineers, is at

present General E.R. Heiberg. Under the Office of the Chief of

Engineers come Division Offices; the Division relevant to this

case is the Ohio River Division (ORD), centered in Cincinnati,

Ohio. At all times directly relevant to this case, General

Heiberg was the senior official in charge of the ORD. Under the

Division come District Offices, two of which are relevant to this

case. The Huntington (W.Va.) District has responsibility for,

inter alia, six Corps-owned structures on the Ohio River from

Meldahl Locks and Dam upriver. The Louisville (Kentucky)

District has responsibility for, inter alia, all Corps-owned pro-

jects from the Markland pool (/.e., from the downstream side of

Meldahl) down to the confluence of the Ohio and the Mississip-

pi.

The ORD is comprised of a number of subunits. Examples

are the Engineering Branch; the Hydrology Branch; the Con-

struction Operations Division; the Reservoir Control Center;

and others. As we understand it, each of these organizations is

responsible for oversight functions of analogous subdivisions at

the District level.

Each District office has primary responsibility for the opera-

tion of projects within its jurisdiction. Of course, the Corps has

— A-72 —

a myriad of activities other than operation of locks and dams.

At the District level, general operational and oversight functions

are performed, and those are transmitted to the projects for im-

plementation. Thus, there is of necessity substantial autonomy

as between the District offices, and the primary role of the Divi-

sion offices is to oversee budgetary and policy matters and to

coordinate activites between the Divisions, as well as to provide

practical and policy-related guidance to the District offices. Of

course, given this hierarchy, the District offices have the

authority to direct, and override, the project personnel; the

Division office has the authority to direct and override the

Districts; and the Office of the Chief of Engineers has the

authority to direct and override the Divisions.

c. More Ice.

We have not, as yet, examined the wealth of evidence offered

by expert witnesses regarding the formation, characteristics,

and dissipation of ice on the river. Much of the evidence adduc-

ed is of value primarily as background, and is not discussed

here; however, it is important to consideration of the issues to

have a basic grasp of the ultimate agent involved in this litiga-

tion, and so we examine the ice evidence briefly.

The principal ice witness for petitioners was Mr. Samuel S.

Lazier; Hans Kivisild, Ph.D., offered brief testimony discussed

in the context of the B-R River Services case, infra. The govern-

ment’s principal witnesses on ice-related matters were John F.

Kennedy, Ph.D., Guenther Frankenstein, Ph.D., and George

Ashton, Ph.D.

(i) Mr. Lazier

Mr. Lazier, who testified on three separate occasions, is a

Registered Professional Engineer in the Province of Ontario

and a full Professor of Civil and Mechanical Engineering al

Queen’s University, Kingston, Ontario. Since at least 1951, Mr.

Lazier has been involved in the hydraulics of rivers. He worked

~A-73 =

for several years with problems relative to floating cut

pulpwood downriver from Canadian forests to processing mills,

and has worked specifically in the subspecialty of ‘‘ice engineer-

ing’’ for about twenty years; he has published a number of ar-

ticles in the field (see Exhibit 295, Mr. Lazier’s curriculum

vitae). It is, we think, fair to characterize Mr. Lazier as one of

the pioneers in the field of ice mechanics. Mr. Lazier was ac-

cepted by the Court as an expert in hydraulics, hydrology, and

ice engineering.

We excerpt at some length Mr. Lazier’s explanation of how

ice forms and dissipates:

The term that’s normally associates with [‘‘slush’’] ice . . .

is frazil ice, and that is . . . the first manifestation of ice.

It’s sort of embryo crystals.

[Frazil ice] has a specific gravity like water, so it,

therefore, it can be carried through the water. It doesn’t

necessarily float. It may float or it may be at the bottom

and it is very sticky. It sticks to anything. Put your finger

in it, you’ll come out with it, and a load of ice on the end

of one’s finger, and it particularly sticks to metal protru-

sions, gates, trash racks and so forth particularly at

powerplants and can obstruct a powerplant in fact.

* * *

[The next stage of ice formation is called brash ice,

which is] a mixture of frazil ice, small particles of ice and

usually fairly soft and also includes sizeable pieces. In the

case of the river, in the case of the Ohio, they may be

several feet in size, but in a smaller river they’d only be a

few inches. And it has a great deal of cohesion because of

all of this frazil ice that’s mixed in it; and whilst it isn’t

Sticky, it is certainly more cohesive than individual blocks

of ice.

* * *

—<—<—_———

—~ Ap74 =

The initial formation is frazil ice, then the frazil ice ag-

glomerates into crystals which are very long and that is

called black ice and that is the strongest known type of ice

there is, and it’s black because when you stand on it and

look through it, it doesn’t look to be there. You can see

right through the ice right to the bottom of the river if the

visibility is good.

Then from then on ice begins to deteriorate through a

metamorphosis, and as the sun gets at it and the warm

weather gets at it the crystalline form changes from the

long lines into smaller crystals. That ice gets refrozen and

becomes a heterogenous material, and then in the final

phase .. . it become candled. And if you take a chunk of

ice out, it will look like a handful of candles. . . . By that

time the ice is just about ready to return to its original

state.

Tr. I at 368-70.

Much of the first segment of Mr. Lazier’s testimony pertained

to a calculation which results in a number which correlates with

the tendency of ice in a stream to begin jamming:

[I]t’s callfed] the ‘Froude Number,’ and mathematically

it’s the velocity of the flow, usually in feet per seconds in

English units, the velocity of the flow divided by the square

root of the depth of water, some mean depth usually, and

also divided by the square root of the acceleration of gravi-

ty.

Tr. | at 321. We do not reproduce the precise formula here, no!

do we detail the mathematical calculations beyond this basic ex-

planation. However, the Froude number calculations has been,

Mr. Lazier testified, found to correlate at a certain critical value

with the formation of ice jams. That critical value is approx-

imately .08.

= Ants —

What this means, as we understand Mr. Lazier’s explanation,

is this. When velocities in the river are relatively low, ice which

is being carried downstream will simply bump into whatever

Obstacle it comes into contact with — here, either Markland

Dam, or ice built upstream from Markland — and stops. Thus,

while it will tend to build upstream if it is not allowed to con-

tinue through an obstruction, it will not build up above or down

below the surface of the ice which is ahead of it, and so no jam-

ming — vertical blockage of the channel — will occur.

However, when velocities increase, the existence of an ice cover

adds a compression factor to the water coming downstream,

and ice carried with that water; as the ice extends at least a little

bit béneath the surface of the water, water coming downstream

must go under the ice, and because the vertical space is smaller,

the water increases in velocity. As it increases in velocity (and

bearing in mind that it is, by hypothesis, already moving at an

increased velocity), it will pull ice carried with it under the ex-

isting ice cover. However, agglomerated ice floats; once the

moving ice tries to get back to the top of the water, it bumps in-

to — and can become attached to — the existing ice cover. The

net result, of course, is that the existing ice cover gets thicker.

The process is a synergistic one. As the ice cover extends

more deeply into the channel, the velocity of water passing

under it must increase, causing more ice to come under and

eventually adhere to the underside of the ice cover. In turn, the

ice coming up against the bottom of the ice cover is subjected to

greater hydraulic force, and it compacts and melds into the ice

cover, creating, instead of a number of adjacent floes, a

homogeneous mass of ice.

The next element to be introduced is the character of the

channel. The amount of water coming downstream is, of

course, a constant as between two linear points in the channel.

When the channel narrows, or when an obstacle cuts off part of

the width, then the water must move faster to **squeeze

through”’ the narrowing space.

—

After these phenomena continue for a period, then it becomes

a jam, restricting or completely blocking the flow of water

downstream:

This obstruction here increased the water level upstream

because previously we were flowing down under gravity at

this velocity. Now we have a high velocity under there and

much higher forces than we had on the bottom before.

And so in order for this flow to be accommodated, the

water level has to rise... .

So this jam causes a water level rise. Now, the deeper

this jam gets — in other words, as the more and more

blocks come down and deepens it and it compacts, the

higher will be this rise.

Now, in a deep river like the Ohio, the possibility of this

extending to the bottom is very, very slim indeed. In nar-

row channels, in shallow channels, sometimes a jam will

form like this (indicating), then the flow will go down and

the whole river level drops including the ice and the ice

then grounds. I can’t see that happening in the Ohio.

There’s 30 feet of water almost everywhere at least, and so

there’s also water flowing under the jam, but of course

because of the increased friction, the water level is higher

upstream, the energy’s got to come there to overcome this

friction.

Tr. I at 331.

Thus, the import of Mr. Lazier’s testimony is that when river

flows increase, an ice cover exists, additional ice comes

downstream with the fast water, and there is an obstruction or

narrowing of the channel, jamming is foreseeable. These prin-

ciples are mathematically modelled in Mr. Lazier’s report, Ex-

hibit 228B.

—

(ii) Dr. Kennedy.

Dr. John Kennedy testified on behalf of the government. Dr.

Kennedy is Carver Distinguished Professor of Engineering at

the University of lowa, and is founder and director of the Iowa

Institute of Hydraulic Research. He teaches and consults in the

field of ice engineering, and lists among his consulting clients

the Bechtel Construction Company, the St. Lawrence Seaway

Development Corporation, the People’s Republic of China, the

government of Pakistan, and, of course, the Corps of

Engineers. He was retained by the Kentucky Attorney

General’s Office to assist in implementation of the decision of a

Supreme Court-appointed special master arbiting the Ohio-

Kentucky border dispute, and thus gained familiarity with the

Ohio River.

As relevant to this preliminary discussion, Dr. Kennedy

testified that ice jams are less predictable than Mr. Lazier

believes. Dr. Kennedy testified that the Froude number analysis

is a useful tool, but must be considered in the context of other

factors; he also testified that the .08 critical Froude value ac-

cepted by Mr. Lazier is susceptible to challenge. As to the

predicates for an ice jam, he testified that they are: (1) a supply

of ice; (2) hydraulic and ice conditions which cause

submergence of ice coming downstream; and (3) overriding

flows and subsequent channel blockage. He did agree with Mr.

Lazier, however that the highest probability for jams exists at

points of ‘‘nonuniformities’’ in the channel, e.g., islands,

shoals, curves, or places where the channel narrows.

With this general introduction to the concepts of ice forma-

tion and the interrelation between flow, channel, and ice, we

return to our chronology of events. The testimony of Dr. Ken-

nedy and the government’s other ice experts will be taken up

once later events at Markland are fleshed out.

5. Wednesday, January 18.

The Louisville forecast on the morning of the 18th was for

—

Generally cloudy but with brief clearing this afternoon and

tonight. High today near 30. Lows tonight in the mid

teens.

Increasing cloudiness with a slight chance of snow showers

Thursday high Thursday near 30 degrees.

Winds .. . northwest 5 to 10 mph today . . . light northerly

tonight and northeast 10 mph Thursday.

The forecast for Wednesday afternoon had changed for the

worse:

peace Winter storm watch Thursday and Thursday night

vane Mostly cloudy tonight ... low 15 to 20. Cloudy with

snow likely beginning during the day Thursday and conti-

nuing Thursday night and Friday. Snow possibility

becoming heavy a: times. Highs Thursday and Friday in

the upper 20s. Low Thursday night in the low 20s.

Exhibit 264 at 39-40.

At Markland, the ice code was reported as ‘*10-S-4-L-X’’ —

100% coverage, 4 inches thick, layered, out-of-sight. The ‘‘S”’

in the code would correspond to the designation for ‘‘shore

ice;’? however, because the definition of shore ice is wholly in-

compatible with 100% coverage of the river, we conclude that

the ‘‘S’’ actually reflected that the ice was stopped.

The Markland log reflects that the dam was running only

nineteen feet of gate opening, and the power plant was utilizing

29,200 cfs. There was a twelve-inch snow cover at the project,

and the log reflects that the project crew was attempting to

break ice in the auxiliary lock chamber (Assistant Lockmaster

Ryle testified that the attempt was likely carried out with the

dam’s pusher boat). The log reflects ‘‘[iJce cond[itions] very

bad it takes 2 or 3 boats to push tow through ice.’’ (Exhibit 121

at January 18th.) River flow on the 18th at Markland was

97,100 cfs, some 3,000 cfs over what had been predicted on the

— A-79 —

17th. Flows were predicted to continue declining through the ae

20th. (Exhibit 219 at 01/18/78 entry.) Markland locked three

upbound and two downbound tows through the main chamber

(Exhibit 122).

The entry regarding the breaking of ice in the auxiliary

chamber is noteworthy. It was on the 19th — after the auxiliary

chamber had frozen up — that the new auxiliary chamber

upstream mitre gate latch pin was installed; as discussed above,

the ability to pin back the mitre gates is crucial to use of the

emergency leaf for skimming operations, and one of the pins

had been broken since 1976. Thus, it may have been that the

Markland crew was, once the latch pin was in place, attempting

to render the auxiliary chamber ready for ice-passage pro-

cedures. However, since the onset of ice conditions, the pro-

ject’s work boat had been moored in the auxiliary chamber, and

had become frozen into the ice; its presence, of course, pro-

hibited the chamber’s use for passing ice. Assistant Lockmaster

Ryle was unable to testify as to conditions on the 17th, as he was

not working. However, he testified both that the only way he

knew of to break ice in the auxiliary chamber was with the

pusher boat (Tr. I at 470-71) and that the ice in the auxiliary

chamber was ‘‘froze solid’’ and ‘‘we couldn’t have’’ successful-

ly broken it with the pusher boat or otherwise (/d. at 462).

Thus, conditions at Markland continued to deteriorate.

Lockage was slow, and ice was ‘‘very bad.’’ However, neither

testimony nor exhibits suggest that the Markland crew was at-

lempting to implement practices designed to ameliorate the

situation, with the possible exception of the ice-breaking at-

tempt.

At Meldahl, the ice conditions were coded as ‘‘10-R-5-L-X’’

— 100% coverage, running, 5 inches thick, layered, out of

sight. Temperatures ranged from 10° to 24°. The dam ran

from 23 feet to 31 feet of gate throughout the day, and at 4:30

p.m., the dam gates were replaced in an ice-passing configura-

— A-80 —

tion: gates 1-4 and 8-12 closed; gate 5, 7 feet; gates 6 and 7, 10

feet each. The 4:30 notation indicates ‘‘emerg gate,’’ reflecting

continued ice passage through the auxiliary chamber. Markland

was able to lock six tows, all downbound (Exhibit 129 at

1-18-78). From the 17th on at Meldahl,

[nJumerous volunteer lite boats [sic.; towboats without

barges] were now operating in the ice pack trying to reduce

the pack density. Formation of a defined channel was vir-

tually impossible due to the slushy nature of the ice and the

only alternative was to reduce pack density. Conditions

were essentially static with reduced flows and a heavy ice

pack for the period extending from the 18th through the

24th. Through this period, ice was passing through the

dam and the auxiliary lock utilizing the emergency gate.

Exhibit 179 at 3-1.

6. Thursday, January 19.

The Louisville forecast on the morning of the 19th was for

... Winter storm warning today and tonight ...

Light snow mixed wiih occasional freezing rain or sleet to-

day becoming moderate to heavy snow tonight and ending

as flurries on Friday. Total accumulation of new snow 3 to

6 inches. High today near 30. Lows tonight near 20. High

Friday in the upper 20s.

Again, the afternoon forecast was somewhat worse:

... Heavy snow warning this afternoon and tonight ...

Snow this afternoon and tonight ... heavy at times ...

possibly accumulating from 4 to 6 or more inches of new

snow by Friday morning. High this afternoon in the upper

20s. Low tonight near 20. Mostly cloudy Friday with

chance of snow showers. High in the upper 20s.

Exhibit 264 at 33-34.

— A-81 —

Markland’s ice code as ‘‘10-S-4-L-X.’’ The dam was running

19 feet of gate opening, and the hydro plant was taking 27,200

cfs. The log entry indicates to activities related to ice passage ef-

forts (Exhibit 121 at January 19). The operations log indicates

that at midnight, ages 1, 7, and 8 were closed; gates 2-6 and 12

were open 2 feet each; and gates 9-11 were open 3 feet each (for

a total of 21 feet). The 8:00 a.m. gate report indicates that gate

2 had been closed to provide the 19 feet reported in the main log

(Exhibit 125 at January 19).

River flow on the 19th at Markland was 99,500 cfs (Exhibit

219 at 01/19/78), and the project was able to lock two down-

ound and eight upbound tows (Exhibit 122).

Conditions at Meldahl were, as noted in the previous entry,

relatively static. The ice code was *‘10-R-5-L-X;’’ temperatures

ranged from 11° to 26°; the emergency gate was in use for pass-

ing ice; and the gate operations entries show that the gates were

in an ice-passing configuration for the entire day, although only

27-36 feet of gate opening was available due to low flows

(98,700 cfs). Meldahl was able to lock five upbound and no

downbound tows; the last tow to start locking through took

over six hours to lock through.

Markland Lockmaster Sheldon testified that during this

period, he wanted to use the main chamber to pass ice more

than was done (i.e., more than the one attempt to do so

reported above), but “‘[w]e didn’t get an attempt made because

we still was being pushed to lock. That was our main object.”’

(Tr. 1 716). He agreed that due to the low flows, his perception

was that it was not possible to pass ice through Markland (id. at

702), and agreed with petitioner’s counsel that ‘‘you simply

were not moving ice through Markland Dam”’ (id. at 717).

7. Friday, January 20.

Friday’s forecast was for cold with a few flurries continuing

into Saturday, with temperatures between 15° and 25°. The

wn ld

Markland log shows the ice code as *‘10-R-4-L-X;’’ again, based

upon the exhibits and testimony, we find that ice was not runn-

ing through the dam, as the code might be interpreted to sug-

gest, but was only running, at most, down to the structure and

then stopping. The gate log (Exhibit 149) shows gate openings

of approximately three feet across the dam; river flow was

102,600 cfs, up at 3,000 cfs from Thursday; total gate openings

were 21 feet-23 feet. Snow cover was reported at 12 inches, and

the log reflects that it was ‘‘very difficult to lock boats’’ (Exhibit

121). On the 20th, because of the existence of difficult ice con-

ditions, Markland personnel went to 12-hour shifts (id.).

At Meldahl, the ice code was ‘‘10-R-5-L-8.5’’ (Exhibit 129) —

indicating that surveillance had revealed that the ice extended

8.5 miles upstream from the structure. Temperatures ranged

from 14° to 25°. The log reflects that Meldahl’s dam gates were

in full ice-passing configuration for the whole day: At midnight,

gates 1-3 and 6-12 were closed, and gates 4-5 were open 18 feet

each; at 9:00 a.m., gates 1-2 and 6-12 were closed, and gates 3-5

were open 14 feet apiece; at 1:45 p.m., gates 1-2 and 6-12 were

closed, gate 3 was open 12 feet, and gates 4-5 were open 14 feet

apiece. The log reflects ‘‘[i]ce thru dam.”’

Meldahl locked three tows up and one down; Markland lock-

ed five tows up into the Markland pool.

a. The Carigan Request.

While the 20th was a relatively uneventful day at the dams

(although hardly business as usual), a noteworthy series of

events occurred behind the scenes. As memorialized in the Ice

Committee Report:

Due to adverse weather conditions, the Huntington

District Office was closed on Friday, 20 Jan 1978. Mr. Ken

Crisp, Chief, Operations Division, received a telephone

call from Mr. Pat Carigan, Chief, Construction-

Operations Division, ORD, at approximately 10:30 AM re-

— A-83 —

questing the Meldahl be instructed to stop passing ice.

Discussion of the past Meldahl actions and correct

methods of operation to maintain navigation ensued.

While Messrs. Crisp and Carigan were having their discus-

sion, Mr. Humphrey of ORD called Meldahl to solicit on-

the-scene information concerning the ice situation as it

would apply to the discussion being had by Messrs. Crisp

and Carigan. Mr. Hayes, Area Engineer, who had been

dispatched from the District Office on 19 Jan to provide

on-the-scene engineering assessments and _ assistance,

received the call. Mr. Hayes conveyed an accurate and

detailed verbal assessment of the existing conditions and

prognosis of the Lockmaster and himself as to the poten-

tial effects of stopping this ice. Mr. Humphrey agreed to

this assessment. Based on the joint evaluation of the situa-

tion existing at Meldahl and the demonstrated success of

the method being used, it was agreed to continue the

operation without modification. The Lockmaster at

Meldahl was so instructed.

Exhibit 179 at 3-2.

At trial, Mr. Carigan testified that he had received a call from

Norbert Whitlock, Chief of Operations for the Louisville

District, to the effect that Markland was being ‘‘covered up

with ice’’ (in Mr. Carigan’s words), and that if Meldahl stopped

passing ice, then Markland could clear some of its ice out. Mr.

Carigan agreed with the Ice Report statement; he called Mr.

Crisp and explained Mr. Whitlock’s perception that ice passage

through Meldah! was causing problems at Markland, and asked

Mr. Crisp to ‘‘do what he could to alleviate it.’”, However, Mr.

Crisp informed Mr. Carigan, according to Carigan’s testimony,

that his responsibility related to structures in his [Huntington]

District, and Meldahl personnel were doing what they should —

and would not change their operations, in light of their success

at handling their problem. Mr. Carigan testified that he was

aware that Meldahl was using the emergency leaf, tainter gates,

snoiy MM aie

and industry tows to break up ice and move it downstream. He

also testified that while he had oversight responsibility for both

Districts — and hence could have required Meldahl to stop pass-

ing ice — he merely made a ‘‘request . . . to see if they couldn’t

hold some of the ice.”’

The following colloquy occurred at Lockmaster Dunaway’s

deposition:

Q. Did you know that a request had been made by the

Ohio River Division to Mr. Krist [sic] that Meldahl be in-

structed to stop passing ice on Friday, January 20, 1978?

A. I don’t remember the date but I remember hearing

about the request. The request was not directed to me.

Q. Were you consulted?

A. Yes, by my area coordinator. I think he was at my

project [Meldahl] at that time, I believe.

* * *

Q. What was the essence of your involvement in the

décision with respect to the request made that Meldahl be

instructed to stop passing ice on January 20, 1978?

A. My involvement was that my area coordinator asked

me what I thought about it and I said you have one alter-

native — two alternatives, I guess. You either stop the ice;

if you stop the ice, you suspend navigation. If you pass the

ice, you maintain navigation.

We were being pressured by the towing industries, we

were being pressured by the cities for salt, we were being

pressured by the cities for petroleum. So, whoever made

that decision I’m sure took that into consideration.

Q. What was your recommendation?

A. I made no recommendation.

—

Dunaway Dep. at 143-45.

Markland Sheldon Lockmaster was not questioned, at trial,

regarding his knowledge of this request from his superior, Mr.

Whitlock, to cut back the flow of ice from Meldahl. He did,

however, testify as follows:

Q. . . . Mr. Sheidon, in January of 1978, were you

familiar with a procedure utilizing towboats wherein

towboats would be positioned above the lock facing the

bank and directing their wheel wash into the approach area

to move the ice riverward away from the entrance to the

locks?

A. Yes, sir.

Q. Had you ever done that?

A. No, sir.

Q. Were you aware that they were doing that at Meldahl

during a period of time beginning, say, two weeks prior to

the breaking of the gorge [on January 28, 1978]?

A. No, sir.

Tr. I at 798. From this testimony, we conclude that whether or

not Mr. Sheldon knew that his superior, Mr. Whitlock, had in-

itiated an attempt to hold ice coming down the main stem from

Meldahl, the intelligence regarding Meldahl’s operational

techniques never made it down the line to Mr. Sheldon. So,

too, Mr. Dunaway testified that he ‘‘wasn’t aware of the pro-

blems at Markland.’’

We view these events and bits of testimony as important in

three regards. First, they indicate that there was a lack of com-

munication and oversight control between the Louisville and

Huntington Districts in the Ohio River Division. Our percep-

tion at trial was that there is a great deal of autonomy given to

the District offices, for what are undoubtedly good reasons.

i

5

3

CC

— A-86 —

However, the events of January 20 indicate that the lockmaster

at Meldahl did not know what was going on at Markland, that

the lockmaster at Markland did not know how ice was being

passed at Meldahl, and that the Division personnel were unwill-

ing to override the decision of District personnel in Huntington

to maintain operations at Meldahl, although the Division per-

sonnel had better knowledge regarding the problems those

Operations were causing downstream.

Second, we credit Mr. Dunaway’s testimony that halting ice-

passage activites would likely result in suspension of navigation

due to ice buildup, a point which calls into question Mr.

Sheldon’s view that attempting to pass ice would detract from

his ability to continue navigation.

Third, these events also indicate that the Corps was aware,

certainly no later than the twentieth, that ice conditions at

Markland were becoming severe, with no relief in sight.

8. Saturday, January 21.

The forecast was for partly sunny conditions with snow flur-

ries. Lows were expected to be 5-10°, with highs in the upper

20s to low 30s.

The Markland ice code was ‘‘10-P-4-L-X;’’ the ‘‘P’’ stands

for ‘‘stopped.’’ The log states ‘‘[h]eavy ice difficult to lock.’’

The dam was running 31 feet of gate openings, evenly

distributed across the gates; the power plant was receiving

27,000 cfs of flow. The afternoon entry states that lock person-

nel were ‘‘[w]Jashing ice and locking boats’’ and ‘‘[b]reaking ice

in aux{[iliary] lock with pusherboat’’ (Exhibit 121). Three down-

bound tows were locked.

The Meldahl ice code was not reported. Temperatures ranged

from 16-26°. Meldahl’s dam gates were in ice-passing mode at

all log entries, and Lockmaster Dunaway engaged in an activity

he referred to in testimony was ‘‘walking’’ the dam gates. The

gate adjustments were as follows:

Time Gate 1 2 3 4 5 6 7 8 9 10 #86llt Wh

midnight = 3 --- --- 14’ 14") 12

moon go --*: -*. 12’ --- --- 12? 14

2:000p.m. j --- --- 6 --- --- 16 16’

8:00p.m. jj --- --- 6 16’ «16

(Exhibit 129 at January 21). According to Mr. Dunaway,

[i]t’s walking the gates. I’d use one gate for a while, the

same amount of footage. If the ice would stop at a par-

ticular gate, say Gate No. 4, I would move this particular

opening over to 5. If I had ice that looked like I’m going to

be packing at 11, I would close off 4, move over to 11, put

the same amount of opening on 11, just try to make —

keep it even across the dam because it would have a

tendency to wedge.

Dunaway Dep. at 24-25. Mr. Dunaway testified that he utilized

this method of gate manipulation throughout the period of

heavy ice, often doing it for only a few minutes to start the ice

moving again (id. at 25-26); due to the short periods sometimes

involved, he testified, many of these ‘‘walking’’ manipulations

do not show up in the records (id.).

9. Sunday, January 22.

The forecast for Sunday was

(Exhibit 264 at 23.)

[c]onsiderable sunshine but cold today. High in the upper

20s. Partly cloudy tonight... low 15 to 20. Partly sunny;

and a little warmer Monday. High in the low to mid 30s.

The experience for Monday was for

‘*fiJncreasing cloudiness with a chance of light snow Monday

night

9

. . . lowest temperature in the low 20s.’’ For Tuesday;

**fcJloudy and warmer with a chance of rain or snow.’’ Jd. at 22.

— A-88 —

The Markland log entry for midnight to noon on the 22nd

reflects an ice code of ‘‘10-P-4-L-X.’’ The entry states that the

crew was ‘‘[w]ashing ice through main locks cleaning snow from

lock walls and steps. Cleaning pusherboat off and breaking ice

in aux locks.’? The noon-to-midnight entry is ‘‘{[wJorking 12

hours shifts Locking Boats Washing ice through main ioc."

Exhibit 121 (emphasis in original). River flow was 107,900 cfs

(Exhibit 219 at 1/22/78); the dam ran 23-27’ of gate opening

and diverted 27,200 cfs to the hydroelectric plant. Two tows

were locked.

At Meldahl, temperature ranged from 10 to 37; again, no ice

code appears. Meldahl’s dam gates were in ice-passing con-

figuration for the entire day. Meldahl was able to lock eight or

nine vessels, seven downbound and one or two upbound (Ex-

hibit 129).

10. Monday, January 23.

Forecast, 5:30 a.m.:

Sunny and warmer today with highs in mid 30s. Increasing

cloudiness and warmer tonight with lows in low to mid 20s.

Cloudy and warmer Tuesday with rain developing by after-

noon. Highs [Tuesday] in low 40s.

Forecast, 4:45 p.m.:

_... Winter storm watch .... Increasing cloudiness tonight

with lows in the low to mid 20s. Light snow changing to

sleet and freezing rain Tuesday becoming rain late in the

day high near 40. Rain Tuesday night lows in the upper

30s. Wednesday ... colder with rain changing to’snow ...

highs in the 30s.

Exhibit 264 at 18-20.

At Markland, Monday presented m

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