Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73-C-2881 - Thomas R. McMillen, Judge.
Tom C. Clark, Associate Justice,*fn* Castle, Senior Circuit Judge, and William J. Campbell, Senior District Judge.*fn**
CLARK, Associate Justice.
Linda Chapman, Administratrix of the Estate of Murrel Chapman, deceased, the appellee, recovered a judgment for $49,207.00 against the United States of America, appellant, under the provisions of the Suits in Admiralty Act (46 U.S.C. § 741 et seq.), for the death of her husband, Murrel, when the small boat in which he was fishing was swept over a submerged dam in the Kankakee River. Initially, she included in her complaint an alternative count under the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.), but the District Court dismissed the same, and no appeal was taken from that action. The United States contends that admiralty jurisdiction is not applicable because the Kankakee is not a navigable stream; and even if it is navigable that the United States did not own, construct, maintain or operate the dam and owed no duty, maritime or terrene, to mark it with a buoy or other type of marking. The District Court found to the contrary and our examination of the record indicates that substantial evidence supports that finding and that the judgment must be sustained.
Mr. Chapman and his sister-in-law, Debbie Paty, were fishing from a sixteen foot aluminum outboard motorboat in the west fork of the Kankakee River when the boat went over an unmarked submerged dam that ran all the way across this fork of the river some 985 feet from its east shore to Island Park on the west. Debbie was rescued a half mile downstream, but Murrel's body was not found for a week. Neither had lifebelts or other safety devices. The gravamen of the complaint was that the unmarked dam - not visible downstream - was a "menace and hinderance to navigation" and that the United States "negligently and wrongfully" caused, allowed and permitted the dam "to exist" and failed to warn boatmen of its "existence" and of "the swift and dangerous currents caused thereby." The case was tried to the court without a jury, and at the conclusion of the evidence the court found that the Kankakee River was "navigable at the point of the decedent's accident and is subject to the Admiralty Act," and it further found that "the decedent's activity was a maritime one and was covered by the Admiralty Act."
The court reasoned that the existence of the dam created a dangerous condition in navigable waters that was "almost invisible" to persons approaching it from upstream, that the United States had a duty to warn persons using the navigable waters of this hidden hazard to navigation, and, having failed to do so, was liable for its failure to warn. See 14 U.S.C. § 86 and Buffalo Bayou Transportation Co. v. United States, 375 F.2d 675 (5th Cir. 1967).*fn1 On the contributory negligence plea of the United States, the court found Chapman negligent by failing to keep a proper lookout; although warned in the past of the existence of the dam with its shore abutments clearly visible, he failed to take notice of it. On a subsequent hearing, the court found Chapman equally at fault, and on a comparative basis calculated the resulting damage to be $49,207.00, which amount was awarded to the appellee.
We have gone through all of the evidence, exhibits, etc., and find ample evidence to support the District Court's findings. However, we emphasize our agreement with Judge Weigel, in Adams v. Montana Power Co., 9th Cir., 528 F.2d 437 (1975), that ordinarily in "the absence of commercial activity, present or potential, there is no ascertainable federal interest justifying the frustration of legitimate state interests." Here, however, as we shall point out infra, the United States' interest in the project for a century and the effort of the Corps of Engineers to abandon it unilaterally, without supervision or control, requires the exercise of jurisdiction and the placing of responsibility on the United States.
The record here shows that as early as 1822, Congress passed an Act granting to the State of Illinois the right of way for the building of an Illinois - Michigan Canal tying Chicago to the Kankakee River. The State, being without funds for construction of the canal, was the recipient of land granted by Congress in 1827. Sale of this land by the State raised the funds necessary for the construction of the canal, which was completed by 1848. In connection with this project, the State built a dam across the Kankakee near Wilmington and a water feeder from that point to the canal, but the State made no provision for boats navigating the Kankakee to pass the State's dam. Subsequently in furtherance of the initial plan to improve navigation and to develop water power as well, a private concern known as the Kankakee Company raised the State dam two feet, built a lock at the end of that dam and constructed four additional locks and dams, one of which is the dam herein in question. These improvements provided an outlet for Kankakee Valley freight to go by water to Chicago and St. Louis. Boats were scheduled regularly from Custer Park to Chicago and St. Louis, generally weekly, carrying grain and other products and bringing back lumber, iron, coffee, sugar, salt and many other articles. As late as 1879, the Kankakee River was found navigable, even during the low water season, for small light-draft vessels. By 1931 the steamers that had used the Kankakee for years had abandoned their schedules, but even as of that date a small side-wheel steamer was still operating.
The record also shows that as late as 1931, the Congress had authorized the construction of several bridges across the Kankakee; a number of other permits authorizing overhead wires, submarine cable, etc., were issued by the Corps of Engineers. Furthermore, a Declaration of Intention filed by the Public Service Company of Northern Illinois to construct a dam at Aroma Park and other works on the Kankakee was docketed with the Federal Power Commission on February 15, 1924. The District Engineer of the Corps of Engineers recommended that the Kankakee be considered a navigable stream, subject to the jurisdiction of the Federal Power Commission. The War Department concurred in this recommendation, but the application was denied. On March 22, 1924, Senate Bill 2904 was introduced declaring the Kankakee to be non-navigable for some 27 miles beginning at a point 5 miles from its mouth and the Aroma Park site where the dam was proposed. The Secretary of War vigorously opposed the legislation, advising the Congress, in part:
It thus appears that the river has been extensively improved by State and private agencies in the interest of navigation and for other purposes. The enactment of the proposed Bill would remove this section of the river from the usual federal supervision. Experience has shown that supervision of streams of minor importance even is likely to benefit both public and private interests by insuring the planning and execution of operations affecting them that the public interest will be conserved.
So far as is known the enactment of this Bill would benefit no public interest and is not necessary for any purpose. In view of the public use that has been made of the river in the past and which the State of Illinois is improving at large expense, it is my opinion that the passage of the ...