The opinion of the court was delivered by: Shadur, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
These consolidated actions were brought by three widows,
individually and as Special Administrators of the Estates of
their respective husbands (Charles Doty, "Doty"; Terry Winters,
"Winters"; and Thomas Schlatter, "Schlatter";*fn1 collectively
"decedents") who lost their lives in a boating accident on the
Mississippi River June 22, 1977. That accident occurred when
Schlatter's boat, from which all three decedents were fishing,
capsized in Gate 6*fn2 below Lock and Dam 13 near Fulton,
Although this is only a summary, essentially the parties'
contentions are these:
(1) Plaintiffs assert that the United States,
acting through its agency the Corps' Rock Island
District, negligently failed to give decedents
adequate warning of the hazardous conditions of
the waters below Lock and Dam 13 (throughout these
Findings and Conclusions the term "below" is used
with the common meaning "downstream of"), failed
to enforce the 100 foot restricted zone below
the dam, and intentionally opened a gate on
(2) Defendants' position is that the accident
was caused solely by the decedents' acts in
failing (a) to heed the "Restricted" sign located
directly above where decedents tied their boat,
(b) to avoid the open and obvious hazards of the
seething, boiling and turbulent water in the
vicinity of Gate 6 and (c) to wear life-jackets
while fishing in an obviously dangerous area.
This action has been tried without a jury upon the facts as
to defendants' claimed liability. After considering all the
evidence and arguments of counsel, in accordance with
Fed.R.Civ.P. 52(a) the Court finds the facts and states its
conclusions of law as follows:
Findings of Fact ("Findings")
1. On June 22, 1977 decedents drowned while fishing from a
boat owned by Schlatter, which they had tied to Pier 6*fn3 on
the downstream side of Lock and Dam 13 on the Mississippi River
near Fulton, Illinois. Schlatter's boat was a 16-foot Glastron
T-161 Bass Boat powered by a 70 horsepower Johnson outboard
motor. After the drowning it was found capsized below Gate 6.
2. Lock and Dam 13 was built by the Corps in 1936-38 for
navigational and flood control purposes. It is one of 29 lock
and dam facilities constructed on the Mississippi River to
provide a 9-foot deep channel for navigation. It has been
owned, operated, controlled and supervised by the Rock Island
District of the Corps' North Central Division continuously to
and since June 22, 1977.
3. Lock and Dam 13 extends from the Illinois riverbank (near
Fulton) across the river to the Iowa riverbank (near Clinton).
It comprises (east to west) one operating lock chamber on the
Illinois side, an auxiliary lock area that has never been
completely constructed (so that its gates are continuously
closed) and thirteen movable steel gates that control the
river's flow. Those enormous gates are separated by concrete
supports ("piers"). They and the piers span 1066 feet across
the Mississippi, and the gates rise high above the water's
surface. They are of two types:
(a) three larger "roller gates" (Gates 5, 6 and
7) are located approximately at the center of the
(b) ten smaller "tainter gates" are located on
either side of the roller gates — four
(Gates 1 through 4) to the east and six (Gates 8
through 13) to the west.
4. Both the tainter and roller gates are adjustable to
varying heights, allowing varying amounts of water to flow
through. Controls for each roller gate are separate and are
located in pier houses on top of the dam. By adjusting the gate
settings at the 29 dams on the Mississippi, the Corps maintains
the 9-foot navigation channel. Each dam regulates the level of
the water upstream of its gates (the "pool") but not the depth
of the waters immediately downstream (the "tail water").
5. Piers on either side of each roller gate extend downstream
from the dam. Ladder rungs are built into the downstream face
of the piers (the "bullnose" or "piernose") for maintenance
purposes. It is about 40 feet from the piernose to the roller
6. Both the gates and the piers are built on a concrete
foundation (the "sill"). Another integral part of the sill are
baffle blocks, obstructions constructed to break the water's
flow immediately below the dam. That dissipates the water
energy, preventing erosion downstream.
8. Dissipation of water energy by the baffle blocks is also
partly subsurface and not visible to boaters on the surface of
the water. Such subsurface turbulence is also directly related
to the factors referred to in Finding 7.
9. Many people boat and fish in the Mississippi River,
including the waters near Lock and Dam 13. Such people and
other members of the public are advised by federal regulation,
as well as by signs and lights posted on Lock and Dam 13 itself
(see Finding 10), that boating is not permitted 600 feet
immediately upstream from the dam and 100 feet immediately
below the dam. Those waters have been designated as
"restricted" by the Rock Island District, pursuant to its
authority and discretion as provided in
33 C.F.R. § 207.300(s).
10. From 1968 through the time of decedents' accident and
thereafter the 100-foot "restricted" area below Dam 13 was
clearly marked with the following signs and lights:
(a) There has been a sign 8 feet wide by 5 feet
high posted below the dam on the "intermediate
wall" (the wall on the west side of the lock,
which separates the lock chamber abutting the
Illinois shore from the river). Printed in black
letters on the sign's yellow enamel background
is the legend:
RESTRICTED. KEEP BELOW THIS POINT.
That sign faces the river and is clearly legible
from the waters immediately below the ...