# Appendix — Walker Towing Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1408%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 493 U.S. 813 ## Text 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- — 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. AUVANVE ‘SWVC LIIT-H9IH YAARI OIHO LY SNOLLIGNOOD ADI AO SISATVNV UVANIT *7 ATAVL — A-91 — The Table speaks for itself, by and large; it simply shows that all but the southernmost dam on the Ohio had some degree of ice problems in January, 1978. The chart does suggest that ice was worse at Markland than at other dams when viewed in terms of the number of continuous days at 100% coverage. We have carefully considered the data represented in the Table, and conclude that they are of little value in assessing either the severity of ice conditions at other structures or the potential im- pact of those conditions on events of concern today. The Ice Committee Report is slightly more helpful in examin- ing events at other dams, since it contains brief reports from Belleville and Racine Locks and Dams, the third and fourth projects upstream from Meldahl. We touch on these narratives only briefly, as they are of limited relevance in assessing what happened at Markland. a. Belleville Locks and Dam. At Belleville, located at mile 204.0 and the second structure in the Huntington District (Meldahl being the sixth and last), con- ditions were as follows: Ice was first reported at Belleville on 12 January in the form of light running ice. River flows were decreasing rapidly and total dam gate opening went from 50 to 29 feet on 13 January. Eight tows transited on the 12th without problems. The emergency gate bulkhead was placed into operation to pass ice in the auxiliary lock on 13 January. Light broken ice covered about 80% of the river surface upstream of the dam. Seventeen tows transited without problems from the 13th through the 14th of January. Density of the ice pack was increasing and ice continued to pass through the dam and auxiliary lock. On the 1Sth of January, river flow was moderate. Densi- ty and extent of ice upstream of the dam had decreased. — A-92 — The ice pack extended about 4 miles upstream of the dam. Tows continued to transit without significant problems. Ice stopped moving through the dam on 16 January due to decreased flow. The ice pack upstream of the dam in- creased on 16 and 17 January such that it extended 10 miles upstream. During this same period, twenty-two tows tran- sited without significant problems. Ice was continuously passed through the auxiliary lock. River flow increased slightly on 18 and 19 January. On the evening of the 18th, ice started moving through one gate on the dam. Broken ice was continuously passed through the auxiliary lock. The ice pack upstream of the dam because more dense, was stationary, and extended upstream about 3 miles. During this period, seven tows transited without significant difficulty or delay. River flow increased slightly on 18 and 19 January. On the evening of the 18th, ice started moving through one gate on the dam. Broken ice was continuously passed through the auxiliary lock. The ice pack upstream of the dam became more dense, was stationary, and extended upstream about 3 miles. During this period, seven tows transited without significant difficulty or delay. River flow remained fairly steady through 24 January with minor fluctuations. Thirty-three tows transited dur- ing the period of 20 to 24 January. Broken channel ice was continually passed through the auxiliary lock was coor- dinated wih lockages in the main lock to minimize adverse currents. The pack ice upstream of the dam had increased to about 9 miles. There was an accumulation of 22 inches of snow on the pack ice and ground. Exhibit 179 at Exhibit 5, p. 1-1. — A-93 — b. Racine Locks and Dam. Racine Locks and Dam, located at mile 237.5, is 33.5 miles downstream from Belleville. Its entry in the Ice Report is as follows: Ice was first reported at Racine on 11 January 1978. There were no significant impacts resulting from ice until 20 January. During this period, river flows decreased allowing gate openings to go from a maximum of 94 feet on 11 January to openings in the teens. The ice continued to increase in density and to build up in the approaches and covered the entire river for a distance of approximately 8 miles above the project. During this period, ice was passed through the auxiliary lock and the dam. The number of lockages was slightly below normal. The first significant impact on navigation occurred on 20 January whe (sic) the upbound M/V A.V. CRISS with 11 empty standards was unable to break through the ice pack. She locked back downstream and waited for three downbound tows working as a team to clear a channel. After these downbound tows had locked through, the M/V A.V. CRISS made an upbound transit with only minor difficulty. This was the first evidence of developing ice problems. By 21 January, the ice had continued to pack and was layering. Areas around the lock were now covered with layered ice reaching 2 to 3 feet in thickness. Most locking vessels required assistance to penetrate the heavy ice. The ice pack would not move through the dam with the available gate opening and existing flows and only ice broken and pushed into the chambers by tows was passed. Id. at p. 2-1. Of course, because these structures are upstream from Markland, river flows were lower; however, like Meldahl, personnel at both projects made continual efforts to pass ice, using the auxiliary on a continual basis and using whatever other means conditions permitted. —- AM — The report of activities at Belleville, however, illustrates another point worth noting — the overall long-term effect of passing ice when possible. On January 15th, the Belleville ice extended four miles upstream. On the 16th and 17th, it extend- ed upstream 10 miles, as its passage had become difficult. However, ice-passage activities continued; by the 18th, the ice pack, though stationary, was reduced to three miles upstream. At no time was the ice extended more than the ten miles upstream reported on the 16th, although it did increase back to nine miles on the 24th. 12. The Whitlock Visit. Writing for the Ice Report, Norbert Whitlock, then Chief of Operations for the Louisville District, stated: On 23 January, I visited the Markland site and boarded various towboats in trying to expedite and move traffic. It was Observed that much of industry was not cooperating with each other. It wasn’t until an industry representative and I contacted many of the boats by radio and got them organized and was able to wash the ice and help one another in and out of the lock chambers [sic]. Also, on 23 January, a Notice to Mariners was issued stating that we would only lock 70-foot wide tows because of the heavy ice buildup. Also, a decision was made to lock all downbound tows in order to get as many tows out of the ice as possible. Exhibit 179 at Exhibit 6, p. 1. Mr. Whitlock’s report also states that ‘fon the 23rd, the tow that I was on was on ground in the middle of the river. It had ice built up approximately 20 feet deep under the barges which made navigation extremely slow and difficult.’’ Jd. at 2. Mr. Whitlock testified on direct examination that given observed conditions and the extant weather forecast, he was satisified that conditions at Markland could only improve. He testified that it was his belief that if temperatures rose, a slow in- — en cl li i — A-95 — crease in flows would permit ice passage through the dam, clear- ing the accumulation; if temperatures fell, the sticky ice would harden and knit together, and traffic would break a clean chan- nel through. On cross-examination, Mr. Whitlock’s understanding of the ice situation at Markland and upstream from the project was seriously challenged. Although he testified on direct that he believed that there had been nothing but light floating ice upstream of Warsaw on the 23rd, his memorandum written to the Ice Committee in 1978 states, ‘‘[o]n 22 January, the ice con- ditions as reported were that there was bank-to-bank ice from three miles downstream of Rising Sun’’ down to the Markland project. Exhibit 179 at Exhibit 6, p. 2. Rising Sun, Indiana, is located at mile 506; according to Mr. Whitlock’s Ice Report notation, then, ice was bank-to-bank from mile 509 (three miles downstream from Rising Sun) to Markland, located at mile 531.5 — 22.5 miles of ice. Ice experts Lazier and Ashton were in agreement that the fact that Mr. Whitlock reported open water with 40-50% floating ice coverage at Warsaw on the 23rd was not incompatible with reports that ice was built up to mile 509 on the 22nd, for one reason. Vessels seeking to come down through Markland were being stalled by the deteriorating conditions at the project, and so they were tying off in Warsaw, the first town upstream from the project. Thus, there was substantial vessel traffic in the area at and upstream from Warsaw, traffic which, we find, broke up the ice in the area and caused the conditions reported by Mr. Whitlock after his brief voyage on the JACK BULLARD. Captain Jerry Smith was master of the M/V BRIMSTONE in January, 1978. Captain Smith testified that he cleared Meldahl Locks, heading southbound, at 9:45 a.m. on the 23rd. At 7:00 p.m., the BRIMSTONE stopped in heavy ice at mile 497, nine miles upstream from Rising Sun. On the 24th, he was able to follow other boats through to mile 520'’2, midway between uy eee Markland and Rising Sun; from that vantage point, Capt. Smith testified that he could see for one and one-half to two miles downstream, and that ice was bank-to-bank as far as he could see. On balance, considering the evidence before us, we find as a fact that ice was built up to at least mile 509 — three miles downstream from Rising Sun — on January 22-23. First, we think that Mr. Whitlock’s report, generated shortly after the events and in the context of the Ice Committee investigatory process, is more reliable than his recollections years later in the context of trial testimony. We also find Captain Smith’s testimony generally corroborative on this point. We note our own perception that given the tremendous amount of ice which had come down the main [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1408%3A2. Public record. Not legal advice.