to defendants. It was also possible, as defendants contend, for
decedents' boat to have swung into the pier with sufficient
force to have capsized and caused decedents to be thrown into
the water. Damage to the boat could have occurred in various
ways and was consistent with the buffeting of the boat against
Gate 6. Plaintiffs have not sustained their burden of proving
the accident was attributable to defendants' conduct, and
defendants are not found to have been at fault or to have
caused the accident.
30. Just after the accident decedents were heard crying for
help and seen floating downstream. Messrs. Trude, Matzen and
Burman heard the cries for help, saw decedents' heads and their
arms waving for help and immediately proceeded to try to aid
decedents. Matzen testified he got to the location where he had
seen the heads in a minute, made two to five unsuccessful
sweeps trying to locate them and then headed for the land wall
of the lock, where he beached his boat and ran to the control
house to report the accident.
31. Hebeler and Zipse responded to Matzen's calls for aid.
Zipse called the police and his superior Paul Miller. Hebeler
went out to the dam to see whether he could provide any aid.
32. Cram testified that he had not heard any cries for help
but someone came into the "pocket" (on the Iowa side) where he
was fishing and told him about the accident. Cram went out to
see what assistance he could give and observed decedents' boat
being slammed into Gate 6. Cram then proceeded to the
intermediate wall, where one of his fellow boaters climbed part
way up a ladder and talked to a person (Hebeler) whom he then
saw go onto the dam and close Gate 6.
33. When Hebeler went onto the dam, he saw the boat being
turned over and over in the waters next to Gate 6 and closed
the gate. It took approximately two minutes to close Gate 6
from its two foot opening to a zero opening. According to the
automatic recording device, that gate closing occurred at
approximately 8:35-8:40 p.m.
34. Decedents' boat was then retrieved from the gate bay by
use of a skiff lowered from the service crane atop the dam.
Next day the yellow mooring line, the trolling motor and a
portion of the gunwale of the boat (all of which were still
attached to the piernose, the main portion of the boat having
broken away) were recovered.
35. Decedents' bodies were all recovered, without lifejackets
on, three days after the accident (June 25, 1977) in the river
downstream from Lock and Dam 13 on the Illinois side. Doty's
watch was stopped at 8:17 p.m.
36. Decedents were not wearing life-jackets even though the
boat was equipped with an ample number for each of them to have
done so. Crabb testified that when he had fished with Schlatter
neither of them would wear lifejackets, although when
Schlatter's young sons accompanied them they would require that
the sons do so. Because witnesses observed heads and arms above
the water downstream from the dam after the accident, it
appears likely that decedents survived the capsizing of the
boat, and there is a substantial likelihood that decedents
would have survived had they worn lifejackets as they should.
Failure to have done so constituted additional negligence on
decedents' part that was likely to have caused their drowning.
Conclusions of Law ("Conclusions")
1. This Court has jurisdiction of the subject matter and
parties to this action under the Suits in Admiralty Act,
46 U.S.C. § 741-52. United States v. United Continental
Tuna Corp., 425 U.S. 164, 176 n. 14, 96 S.Ct. 1319, 1326
n. 14, 47 L.Ed.2d 653 (1976); Chapman v. United
States, 575 F.2d 147, 149-50 (7th Cir.), cert.
denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978).
2. As owner and operator of Lock and Dam 13 the Corps (and
therefore the United States) has a duty to warn users of the
Mississippi River that it is dangerous to approach too near to
the dam. Adequacy of the warnings provided by the Corps must be
judged by a standard of "reasonableness":
whether the Corps acted with due care under the circumstances
in so warning such users.*fn10 Indian Towing Co. v. United
States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48
3. Under the circumstances and for the reasons expressed in
Findings 9-13, the warning signs and lights described in
Finding 10 were reasonable and satisfied the Corps' duty to act
with reasonable care as stated in Conclusion 2. That duty did
not include, as plaintiffs claim, an obligation to impose an
affirmative duty on the Corps' employees Hebeler and Zipse to
maintain a continuing lookout for any unauthorized persons
— like decedents — who voluntarily entered the area
below Lock and Dam 13 marked "Restricted." Nor was the Corps
obligated, as plaintiffs claim, to select alternate or added
means of warning. Bearce v. United States,
614 F.2d 556, 560-61 (7th Cir.), cert. denied, 449 U.S. 837,
101 S.Ct. 112, 66 L.Ed.2d 44, pet'n for reh'g denied,
449 U.S. 1026, 101 S.Ct. 595, 66 L.Ed.2d 488 (1980).
4. Taking into account all the facts stated in the Findings,
the Corps and the United States acted with reasonable care as
to all their conduct connected in any fashion to decedents'
deaths. Because the Corps and the United States were not
negligent, their conduct was not a proximate cause of
5. Ordinary standards of good seamanship (due care and
general concepts of negligence) apply to recreational boaters
as well as to large commercial ships. First National Bank
of Chicago v. Material Service Corp., 597 F.2d 1110, 1117,
1119 (7th Cir. 1979). Decedents were therefore under a duty of
reasonable care when they operated their motorboat.
6. In addition to decedents' general duty of reasonable care,
the United States contends that decedents were also required to
follow the statutory standards of conduct prescribed by
33 U.S.C. § 351, 46 U.S.C. § 1461(d) and
33 C.F.R. § 207.300(m)-(s). In part those standards require that boaters be
held liable for the "neglect of any precaution which may be
required by the ordinary practice of seamen. . ." (33 U.S.C. § 351),
that boaters not "use a vessel . . . in a negligent
manner so as to endanger the life of any person" (46 U.S.C. § 1461(d))
and that no floating craft "shall enter any
restricted area" — such as the one below Gate 6 in this
case — "at any time" (33 C.F.R. § 207.300(s)). In
those respects the United States asserts, and this Court
concludes, that decedents violated those statutory standards of
conduct by entering the restricted area below Lock and Dam 13,
mooring their boat to the pier and fishing in the hazardous
waters at the base of the dam.
7. It is the further contention of the United States that
decedents' breaches of statutory duty referred to in Conclusion
6 require this Court to apply the rule of The
Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874)
to this case. First National Bank, 597 F.2d at
1116-17. Under that rule (announced and applied in collision
cases) a plaintiff guilty of breaching statutory duties must
prove that the breach could not have been the cause of
the accident or injury. If on the other hand the breach is of
an ordinary duty of care, not statutorily created, the rule of
The Pennsylvania does not apply, and the determination
of contributory negligence depends on whether the plaintiff's
negligence was in fact a cause of the accident.
8. If the rule of The Pennsylvania applied to this
action plaintiffs could not recover, for they have not proved
that the statutory breaches referred to in Conclusion 6
could not have been the cause of decedents' deaths.
This Court need not however
decide that question, because (for the reasons stated in
Findings 9-12, 15, 18-19, 22-26 and 36) decedents did not act
with reasonable care in entering the restricted area below Lock
and Dam 13 and in their conduct thereafter, and that negligence
was in fact the cause of the accident. Accord
(although every case of course poses its own unique set of
facts), such cases as Jacobs v. United States, 1979
A.M.C. 660, 666-68 (E.D.Ky.); Cali v. United States,
No. S 75-739 PCW (E.D.Cal. 1979); Beeler v. United
States, 256 F. Supp. 771, 777 (W.D.Pa. 1966); Harris v.
United States, 154 F. Supp. 46, 51 (W.D.Ky. 1957). Because
the record so clearly establishes decedents' lack of due care
and a direct factual nexus between their negligence and the
accident causing their death, it is unnecessary to determine
whether the stricter standard of The Pennsylvania
9. All three decedents participated in the fishing venture
and had the right to reject tying up and fishing in the waters
below the dam.*fn11 Indeed, the tying-up of the boat was at
least a two-person operation. In any event, each of the
decedents was independently negligent because they all should
have avoided activity in the hazardous waters below Gate 6.
Rogers v. Saeger, 247 F.2d 758, 760 (10th Cir. 1957);
Chimene v. Dow, 104 F. Supp. 473, 477 (S.D.Tex. 1952);
cf. Gele v. Chevron Co., 574 F.2d 243, 250 (5th Cir.
1978); Merrill Trust Co. v. Bradford, 507 F.2d 467,
468-70 (1st Cir. 1974).
10. Based upon decedents' failure to exercise reasonable care
and the fact that the Corps did exercise such care,
this Court concludes that the accident below Lock and Dam 13
and Gate 6 was proximately caused by the negligence of the
decedents and was not proximately caused by the Corps. There is
therefore no occasion to apply the doctrine of comparative
It is therefore ordered that these actions be dismissed on
their merits and that judgment be entered in favor of