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In re Complaint of Ingram Barge Co.

United States District Court, N.D. Illinois, Eastern Division

November 29, 2016

IN THE MATTER OF THE COMPLAINT OF INGRAM BARGE COMPANY AS OWNER OF THE M/V DALE A. HELLER AND THE IB9525, IN025300, IN085089, IN095041, IN096081, IN107057, AND IN117513, PETITIONING FOR EXONERATION FROM OR LIMITATION OF LIABILITY, IN THE MATTER OF AMERICAN COMMERCIAL LINES, LLC, AS OWNER AND INLAND MARINE SERVICE, INC. AS OWNER PRO HAC VICE OF THE M/V LOYD MURPHY FOR EXONERATION FROM OR LIMITATION OF LIABILITY.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE United States District Court Judge.

         This admiralty case arises from the M/V Dale Heller's unsuccessful attempt to navigate its fourteen-barge tow past a federal dam located near the city of Marseilles, Illinois during a high-water situation on April 18, 2013. Petitioner Ingram Barge Company (“Ingram”) owned and operated the Dale Heller. While traversing Illinois River Mile 247.0 near the dam, the Dale Heller's tow broke apart, and seven of its barges either allided with the dam or sank upriver from it. Subsequent to this incident, the river waters overtopped the surrounding earthen dike and flowed into the city of Marseilles, causing substantial damage to real and personal property. Other maritime vessels were present at the allision, including (i) the M/V Loyd Murphy, operated by Petitioner Inland Marine Service, Inc. (“IMS”); (ii) the M/V City of Ottawa, a United States Army Corps of Engineers (“Corps”) vessel; and (iii) the M/V Creve Coeur, another Corps vessel.[1]

         Ingram and IMS both filed a complaint in admiralty for exoneration from or limitation of liability in connection with this incident, under 46 U.S.C. § 30501, et seq. (R.1; R.1, 13-cv-04292).[2] The United States filed a claim in both limitation actions for damages to the Marseilles Dam and related structures, alleging violations of the Rivers and Harbors Act (“RHA”), negligence and unseaworthiness under the general maritime law, and the creation of a public nuisance. (R.129; R.333, 13-cv-04292).[3] Ingram and IMS, in turn, filed counterclaims and Rule 14(c) tenders against the United States, alleging, among other theories, negligent conduct on the part of the Corps employee responsible for dam gate movements at the Marseilles Lock and Dam facility. (R.165, R.373; R.357, 13-cv-04292). Numerous claimants-including two groups of individual property owners (“Individual Claimants”), the City of Marseilles, and Marseilles Elementary School District #150 (“MESD”) (collectively, the “Flood Claimants”)-also filed general maritime claims against Ingram, IMS, and the United States for their resulting property damage.

         On July 13, 2016, the Court granted the United States' motion for immunity from tort liability under the discretionary function exception. (R.835). In September 2016, the Court dismissed all claims, counterclaims, and Rule 14(c) tenders between the United States and IMS, and the United States and Ingram, pursuant to stipulations of dismissal with prejudice. (R.879; R.888). The Court further dismissed, with prejudice, the Flood Claimants' pending claims against the United States. (R.899). In addition, the Court dismissed the City of Marseille's claim against Ingram, MESD's claim against Ingram, and MESD's claim against IMS, all pursuant to stipulations of dismissal with prejudice. (R.889; R.898).[4] One group of Individual Claimants also settled with and dismissed their claims against Ingram within the first week of trial. (R.905).[5]

         The remaining parties-the second group of Individual Claimants and Ingram-tried their claims and defenses before the Court in a 10-day bench trial.[6] The Court heard live trial testimony from eighteen fact and expert witnesses, and reviewed numerous deposition designations of both party and non-party witnesses.[7] In addition, the Court weighed substantial documentary and audio-visual evidence collected from the incident - including, among other evidence: (i) contemporaneous audio recordings from the Dale Heller's wheelhouse throughout April 16-18, 2013, as captured by its Vessel Data Recorder (“VDR”);[8] and (ii) contemporaneous visual footage of the Dale Heller's attempted transit on April 18, 2013, as captured by three Corps cameras positioned around the Marseilles Dam. In trying this case, Claimants primarily focused on two areas of purported negligence: (i) Ingram's failure to heed weather conditions throughout April 16-18, 2013; and (ii) Ingram's insufficient planning and ineffective communications leading up to and during the attempted canal transit.

         This Memorandum Opinion and Order sets forth the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. After considering the admissible evidence, and upon assessing the credibility of each witness, the Court finds as follows with respect to “Phase One” of this admiralty action:

1. The Oregon Rule does not apply to presume fault against Ingram because there is no “factual vacuum” in the record meriting its application. See City of Chicago v. M/V Morgan, 375 F.3d 563, 572-73 (7th Cir. 2004). The Pennsylvania Rule also does not apply because Claimants have failed to prove a regulatory violation. See Folkstone Mar., Ltd. v. CSX Corp., 64 F.3d 1037, 1046-47 (7th Cir. 1995).
2. Claimants have not established Ingram's negligence under the general maritime law by a preponderance of the evidence. See M/V Morgan, 375 F.3d at 572-73.
3. Even presuming fault under the Oregon Rule, Ingram has exonerated itself from liability by proving that the allision was the sole fault of the operator at the dam. See M/V Morgan, 375 F.3d at 574. The Court does not need to reach the application of (i) the “inevitable accident” doctrine, or (ii) the in extremis doctrine. See Id. at 575-77.
4. Even if the Court had found contributory fault on the part of Ingram, Ingram is entitled to limit its liability pursuant to the Limitation of Liability Act, 46 U.S.C. § 30505. Ingram's operational decision to proceed southbound throughout April 16-17, 2013, to reject alternative mooring positions on April 18, 2013, and, ultimately, to attempt and execute the transit plan-even if a proximate cause of the allision-was not within the “privity or knowledge” of Ingram's managerial shoreside personnel. See Am. River Transp. Co. v. Ryan, 579 F.3d 820, 822 (7th Cir. 2009).
5. Even if it had found contributory fault on the part of Ingram, the Court finds no fault on the part of IMS. See McDermott, Inc. v. AmClyde, 511 U.S. 202, 217 (1994).

         BACKGROUND

         I. The Players

         A. Ingram Barge Company

         1. Vessel Crew

         Ingram is a for-hire river carrier, operating more than 150 towboats and nearly 5, 000 hopper and tank barges on the inland rivers of the United States, including the Mississippi, Ohio, Illinois, Tennessee, and Cumberland Rivers. (R.846-1, Stmt. of Uncontested Facts ¶ 32). In April 2013, Ingram owned and operated the 6, 120 horsepower-rated Dale Heller, as well as Barges IB9525, IN025300, IN085089, IN095041, IN096081, IN107057, and IN117513. (Id. ¶¶ 1, 33). Charles White (“White”) captained the Dale Heller, and Ronald Shrader (“Shrader”) piloted it. (Id. ¶¶ 34-37).[9] Both Captain White and Pilot Shrader testified at the trial.

         Captain White began his career in the inland river industry at age 21, starting out as a deckhand with the Ohio River Company. (09/28 White Tr. at 770-73). In 1977, he obtained his towboat pilot's license and, eventually, merited a First-Class Pilot's License and a Master of Towing Vessels License for the Western Rivers, which he held in April 2013 and which the Coast Guard has never revoked or suspended. (Id. at 773-74, 777-78). He has been a captain and pilot on the Illinois River for roughly 25 years, and-throughout that career- has transited past the Marseilles Lock and Dam “between a thousand and two thousand” times. (Id. at 774-75). He has worked on the Dale Heller-originally known as the Olmstead-for approximately 35 years, and became its captain “roughly 12 years ago.” (Id. at 776-77).[10] After Captain White retired two years ago, Pilot Shrader became the captain of the Dale Heller. (Id. at 770; 10/03 Shrader Tr. at 1317-18). Pilot Shrader, like Captain White, has extensive experience in inland towing operations, having worked in the industry for 31 years, including 20 years as a pilot. (10/03 Shrader Tr. at 1318-19). He holds a Master of Towing Vessels License for the Western Rivers, and has transited into the Marseilles Canal more than 100 times. (Id.).

         According to Claimants' maritime expert, Captain Donald Kinsey, “the mariners who operate on the upper rivers [such as the Illinois River] are the ‘elite' of the inland mariners.” (TREX 2221, Kinsey Expert Rep. at 4). Captain Kinsey further testified that the Dale Heller's crew on April 18, 2013, was “properly licensed, trained, and experienced, ” that Ingram's policy and procedures manual was “very comprehensive, ” and that the Dale Heller itself was “very well-equipped, modern and very powerful, ” with “the latest available technological aids . . . far in excess of any statutory requirements.” (Id. at 28; 09/22 Kinsey Tr. at 330-32, 326-27). Captain Kinsey-a lead auditor for the national Responsible Carrier Program (“RCP”)-testified that the Dale Heller, its crew, and its governing safety procedures were certified as RCP-compliant at the time of the allision. (09/22 Kinsey Tr. at 326-330). Ingram's expert in inland towboat operations-Captain Samuel Schropp (“Schropp”)-testified to the same effect at trial. (10/05 Schropp Tr. at 1619-23).[11] Captain Schropp further opined that the Dale Heller's tow was “staunch and tight, and . . . built appropriately for the prevailing circumstances” on April 18, 2013. (Id. at 1626). The Court also heard testimony from Ingram's Chief Engineer onboard the Dale Heller at the time of the allision-Justin McNees (“McNees”)-who confirmed that the Dale Heller had no mechanical issues throughout April 17-18, 2013. (09/29 McNees Tr. at 1016-17, 1020-21). Claimants do not contest the seaworthiness of the Dale Heller or the staunchness of its tow at the time of the allision.[12]

         2. Shoreside Personnel

         Ingram's shoreside personnel included two teams: (1) a customer service team responsible for coordinating barge deliveries between vessel crews and customers; and (2) an operations team responsible for overseeing towboat operations such as the Dale Heller's. (09/29 Moore Tr. at 1031-32, 1055). From the customer service side, Adrienne Moore (“Moore”), Ingram's General Manager for Customer Service, and Carissa Koeller (“Koeller”), an Ingram barge dispatcher, testified at the trial. The Court also reviewed the deposition designation of Gary Holt (“Holt”), who supervised Moore and Koeller. Both Moore and Koeller testified that they were not responsible for the vessels' navigational decisions or for the dissemination of weather information to vessel crews. (09/29 Moore Tr. at 1032, 1034; 09/29 Koeller Tr. at 1063, 1066).

         On the operational side, Ed Henleben (“Henleben”) testified at the trial. For the last twelve years, Henleben has served as a Senior Manager of Vessel Operations (also known as a “port captain”) at Ingram, the Dale Heller being one of the vessels in his area of responsibility. (R.846-1, Stmt. of Uncontested Facts ¶ 38; 10/04 Henleben Tr. at 1427). Prior to joining Ingram's operations team, Henleben worked as a port captain for other marine transportation companies. (10/04 Henleben Tr. at 1429). He also piloted river towboats as a licensed mariner for approximately 15 years and became “very familiar” with the Marseilles Lock and Dam. (Id. at 1428-29). Henleben described his port captain responsibilities as “assisting the captain and pilot or any other crew member with any . . . issues that they might have, ” including with respect to fuel and supplies. (Id. at 1430). He also “assist[s] other people” to ensure that vessel crews “have adequate information regarding the weather.” (Id. at 1488-89). In terms of navigation issues, Henleben testified that, while he “sometimes serves as a sounding board” for vessel crews, the captain or pilot “has the final say over his flotilla.” (Id. at 1430, 1435). In April 2013, Henleben's supervisor was John Operle, Ingram's Vice President of Operations. (R.846-1, Stmt. of Uncontested Facts ¶ 39).[13] A fellow Ingram port captain, Thomas More (“More”), also testified at the trial. (09/30 More Tr. at 1096).

         3. Other Ingram Designees

         In rendering its factual findings and conclusions of law, the Court also reviewed the deposition designations of: (i) Glen Dotts (“Dotts”), Ingram's Assistant Vice President of Customer Service who circulated weather information to select Ingram personnel; (ii) Robert Taylor (“Taylor”), Ingram's Senior Manager of Vessel Operations, who forwarded Dotts' weather information to vessel crews; and (iii) Sam Guge (“Guge”), an Ingram deckhand who was aboard the Dale Heller on April 18, 2013.

         B. Inland Marine Service

         IMS is a vessel management company, which staffs, manages, and navigates vessels for its clients, including American Commercial Lines, LLC (“ACL”). (R.846-1, Stmt. of Uncontested Facts ¶ 40). In April 2013, ACL owned the 6, 100 horsepower-rated Loyd Murphy, while IMS was its bareboat charterer, operator, and owner pro hac vice. (Id. ¶¶ 2-3, 41). ACL is no longer a party to this litigation. (R.674).

         IMS employee Anthony Ice (“Ice”) captained the Loyd Murphy, while Jackie Daniel (“Daniel”) piloted it. (R.846-1, Stmt. of Uncontested Facts ¶¶ 42-43). Captain Ice-who testified at the trial-holds a Master of Towing Vessels License for the Western Rivers and has 24 years of experience navigating towboats and barges on the Illinois River. (10/03 Ice Tr. at 1181-83).

         In rendering its factual findings and conclusions of law, the Court also reviewed the deposition designations of: (i) Daniel; (ii) David Hammond, Jr. (“Hammond”), the President of IMS; and (iii) Harold Dodd (“Dodd”), ACL's Director of River Operations.

         C. The Army Corps of Engineers

         1. The Marseilles Lock and Dam

         In April 2013, the United States of America, through its agency, the Corps, operated and maintained the Marseilles Lock and Dam and the Marseilles Canal. (R.846-1, Stmt. of Uncontested Facts ¶ 5). Larry Rodriguez (“Rodriguez”) was the Lockmaster at the Marseilles Lock and Dam in April 2013, and was in the lockhouse during the Dale Heller's attempted transit into the Marseilles Canal. (Id. ¶ 17). As Lockmaster, Rodriguez was the top-ranking Corps manager at the Marseilles facility on April 18, 2013. He had worked at the Marseilles Lock and Dam for 27 years prior to this incident. (09/28 Rodriguez Tr. at 622-23). Assistant Lockmaster Floyd Smith (“Smith) was also in the lockhouse during the attempted transit. (R.846-1, Stmt. of Uncontested Facts ¶ 18).

         Rodriguez's direct supervisor was Craig Hess (“Hess”), the Corps' Chief of Locks and Dams for the Illinois Waterway in April 2013. (Id. ¶ 21). Hess reported to Michael Zerbonia (“Zerbonia”), the Acting Project Manager for the Illinois Waterway. (Id. ¶ 20). Zerbonia, in turn, reported to Michael Cox (“Cox”), the Chief of the Operations Division for the Rock Island District. (Id. ¶ 19). Rodriguez and Hess testified at the trial, while Smith, Zerbonia, and Cox testified via deposition designations. The Court also considered deposition designations for (i) Thomas Nock (“Nock”), a Corps hydraulic engineer who participated in discussions concerning the attempted canal transit; and (ii) Kevin Landwehr (“Landwehr”), a Corps hydrologist familiar with the Marseilles Lock and Dam and involved in the Corps' post-incident investigation.

         2. The Maintenance Vessels

         Zerbonia also supervised Brady Beckman (“Beckman”), the General Maintenance Supervisor of the Illinois Waterway. (R.846-1, Stmt. of Uncontested Facts ¶ 22). Beckman, in turn, supervised Jeffrey Griffin (“Griffin”), a Crane Operator Supervisor who was onboard the Loyd Murphy and communicating with the Marseilles lockhouse leading up to the allision. (Id. ¶¶ 23-24). Griffin, in turn, supervised: (i) Captain Robert Slack (“Slack”), who captained the 2, 100 horsepower-rated City of Ottawa; and (ii) Captain Michael Cutler (“Cutler”), who captained the 1, 800 horsepower-rated Creve Coeur. (Id. ¶¶ 25-31). In rendering its factual findings and conclusions of law, the Court reviewed deposition designations for Slack, Cutler, Beckman, and Griffin, as well as deposition designations for: (i) Chauncey Rosenblad (“Rosenblad”), a Corps deckhand who was aboard the City of Ottawa on April 18, 2013; and (ii) Tom Heinhold (“Heinhold”), the Deputy Chief of Operations for the Rock Island District who was involved in the Corps' post-incident investigation.

         D. Non-Parties

         The Court also heard live witness testimony from several non-parties, including: (i) expert research meteorologist Dr. Peter Hildebrand (“Hildebrand”); (ii) expert applied meteorologist Stephen Pryor (“Pryor”); (iii) hydraulic engineering experts Dr. Marcelo Garcia (“Garcia”), Dr. Robert Ettema (“Ettema”), and Dr. Forrest Holly (“Holly”); and (iv) accident reconstruction engineering expert Daniel Fittanto (“Fittanto”). The Court further reviewed deposition designations from the following non-parties:

1. Representatives of the United States Coast Guard, including (i) Executive Officer of the Marine Safety Unit in Chicago, Stacy Miller (“Miller”), and (ii) Commanding Officer of the Marine Safety Unit in Chicago, Jason Neubauer (“Neubauer”);
2. Representatives from the National Weather Service (“NWS”), including (i) hydro-meteorologist Steve Buan (“Buan”) and (ii) supervisory hydrologist Mark Glaudemans (“Glaudemans”);
3. Expert witnesses in the fields of hydraulic engineering, naval architecture, and fluid dynamics / accident reconstruction, respectively, (i) Dr. Tonja Koob (“Koob”), (ii) Mr. George Randall (“Randall”), and Dr. Kenneth Orloff (“Orloff”);
4. Representatives of Kirby Inland Marine (“Kirby”), including port captain Shannon Dale Hughes (“Hughes”) and the Captain of the City of Joliet, Orbie Gene Deaton (“Deaton”);
5. Representatives of American River Transportation Company (“ARTCO”), including port captain Bernie Heroff (“Heroff”) and the Captain of the Nancy S., Lloyd Scott Hardin (“Hardin”);
6. Representative of Marquette Transportation and participant in discussions surrounding the attempted canal transit, Quentin Craig Harris (“Harris”);
7. Representative of AEP River Operations (“AEP”) and the Captain of the Cody Boyd, Al Stunkel (“Stunkel”);
8. City of Marseilles resident Joseph Jakupcak, who witnessed river conditions on April 18, 2013.

         II. The Facilities and Structures

         A. The Marseilles Lock and Dam

         The Marseilles Dam is located at Illinois River Mile 247.1, about 2.5 miles upriver of the Marseilles Lock. (R.846-1, Stmt. of Uncontested Facts ¶¶ 4, 11). Vessels navigating downriver past the Marseilles Dam must enter the Marseilles Canal-the mouth of which is adjacent to the Dam-in order to pass through the Marseilles Lock. (Id. ¶ 12). There are five protective cells on the starboard southbound approach to the canal wall, just above the dam, as well as three tie-off cells along the right descending bank of the river. (Id. ¶ 13; 09/28 Rodriguez Tr. at 630, 635660). The city of Marseilles sits along the right descending bank of the river. (TREX 14-15).

         The Marseilles Lock and Dam is a navigation facility, designed and operated “to provide the required nine-foot minimum channel from Marseilles Lock and Dam to Dresden Island Lock and Dam, a distance of approximately 27 river miles.” (TREX 10, Master Water Control Manual for the Marseilles Lock and Dam at B-1). The river stretch between the Marseilles facility and the Dresden Island facility is known as the “Marseilles Pool.” (R.867, Hardin Dep. Tr. at 20, 109-10). The Corps maintains normal pool elevation-483.2 feet-by opening and closing the Marseilles Dam's eight tainter gates, each of which is 60 feet wide and 16 feet high. (R.846-1, Stmt. of Uncontested Facts ¶¶ 6-7; 09/28 Rodriguez Tr. at 649, 698). As the river level rises, for example, the Corps opens the gates to allow additional water to flow through, maintaining pool elevation. Corps personnel adjust the dam gate settings remotely, from the downstream lockhouse. (R.846-1, Stmt. of Uncontested Fact ¶ 8). The Marseilles facility is unique within the Western Rivers system in that, ordinarily, “the locks are actually physically attached to the dam.” (10/05 Schropp Tr. at 1616-17; see also R.867, Slack Dep. Tr. at 194). The Marseilles lockhouse is equipped, however, to monitor the real-time river gauge for the Marseilles Pool, as well as to display live video feed from three cameras positioned around the Marseilles Dam. (9/28 Rodriguez Tr. at 689-92; TREX 2268-69).

         B. Other Illinois River Areas

         Less than one mile upriver from the Marseilles Dam is an area known as “Gum Creek.” (TREX 15 (reflecting “Gum Creek Light & Daymark” at River Mile 247.8)). Further upriver, at approximately River Mile 248.0, sits an island known as Ballards Island. (Id.).[14] Other Illinois River areas-including Johnson Island and Dresden Island-sit upriver from Ballards Island. (10/03 Ice Tr. at 1215; 09/28 White Tr. at 813). Further upriver still-approximately six miles above Dresden Island-is the town of Channahon, Illinois. (09/28 White Tr. at 806).

         1. Fleeting Facilities between Channahon and Marseilles

         There are several commercial fleeting and dock facilities upriver of Ballards Island, and downriver of Channahon, designed to hold vessels and tows in an emergency. (09/29 White Tr. at 963-64 (naming Fox River Minerals, Spicer Gravel, Black Marine, Farmers Elevator, and Valley Run, among others); see also R.867, Hardin Dep. Tr. at 18-42 (discussing various commercial facilities and mooring structures in the Marseilles Pool, upriver of Ballards Island)).

         2. Ballards Island

         Ballards Island does not have any fixed mooring structures to secure barges or towboats. (R.846-1, Stmt. of Uncontested Fact ¶ 16). Several industry and government witnesses, however, testified that Ballards Island is a standard holding area for vessels planning to navigate downriver past the Marseilles Dam. (09/29 White Tr. at 856; 10/03 Shrader Tr. 1325-26; 10/05 Schropp Tr. at 1638; R.867, Stunkel Dep. Tr. at 123; R.867, Dodd Dep. Tr. at 248-49; R.867, Zerbonia Dep. Tr. at 19-20; R.867, Deaton Dep. Tr. at 27-28; R.867, Daniel Dep. Tr. at 62; R.867, Harris Dep. Tr. at 34-35; R.881, Smith Dep. Tr. at 87; 09/28 Rodriguez Tr. at 667-69).[15]As Lockmaster Rodriguez testified, an upriver tow awaiting lockage cannot enter the Marseilles Canal absent permission from the lock. (09/28 Rodriguez Tr. at 676). The Marseilles Lock and Dam Operations Manual itself recites that “[o]nly vessels waiting lockage turn at Marseilles Lock will be allowed to moor in Marseilles Canal, ” and that the “lockmaster shall be charged with the immediate control and management of the lock . . . No one shall cause any movement of any vessel . . . except by or under the direction of the lockmaster.” (TREX 9 at -1147, -1128 (citing 33 C.F.R. § 207.300(a)).

         Captain White, in particular, testified that “99 percent of the time, I back in on Ballards Island and stop” while waiting for a lock turn or while “wait[ing] out high water” upriver of the Marseilles Dam. (09/29 White Tr. at 856-57). On one prior occasion, he had held a full tow at Ballards Island in high waters-with over 70 feet of gate opening at the Marseilles Dam[16]-by backing into the island and using the Dale Heller's horsepower to hold its barges. (Id. at 1006). Claimants' maritime expert, Captain Kinsey, agreed that “backing in” is a common way to hold a tow on a river. (09/22 Kinsey Tr. at 349-51).

         III. Uncontested Timeline

         The following is an uncontested timeline of events leading up to the April 18, 2013 allision at the Marseilles Dam:

Date/Time
Event
April 16, 2013

09:30

M/V DALE A. HELLER (“HELLER”) begins locking northbound through Dresden Island Lock and Dam.

11:19

HELLER finishes locking northbound through Dresden Island Lock and Dam.

13:45

HELLER arrives at Channahon, Illinois.

21:48

HELLER departs Channahon, Illinois on a voyage downbound on the Illinois River.

23:57

HELLER begins locking southbound through Dresden Island Lock and Dam.

April 17, 2013

03:07

HELLER finishes locking southbound through Dresden Island Lock and Dam.

07:35

HELLER arrives at Ballards Island, upriver from the Marseilles Dam.

16:25

M/V LOYD MURPHY (“MURPHY”) begins locking northbound through Marseilles Lock and Dam.

19:57

MURPHY navigates out of the Marseilles Canal.

20:17

Decision made to tie off the MURPHY and its tow to the tow of the HELLER.

20:35

MURPHY tow joins alongside the HELLER at Ballards Island.

April 18, 2013

07:21

Captains decide to secure combined tows to trees on Ballards Island.

08:35

The M/V NANCY S (“NANCY S”) faces up to combined tows to assist them in holding position.

10:34

NANCY S leaves the HELLER's tow.

10:53

M/V CITY OF JOLIET (“JOLIET”) with two barges arrives to assist the HELLER.

10:59

NANCY S departs, headed upriver.

11:48

The M/V CITY OF OTTAWA (“OTTAWA”) faces up to combined tows to assist them in holding position.

13:04

OTTAWA departs, heading back downriver.

13:09

The M/V CODY BOYD faces up to combined tows to assist them in holding position.

14:00

RIAC/IRCA High Water Call begins.

15:04

OTTAWA again faces up to combined tows to assist them in holding position.

15:18

Captains' meeting on the OTTAWA begins.

15:37

Captains' meeting ends.

16:11

The MURPHY's tow is disconnected from the HELLER's tow.

16:45

The MURPHY returns to the starboard side of the HELLER's tow.

16:48

JOLIET and its two barge tow disconnect from the HELLER's tow.

16:55

JOLIET departs downstream towards the canal.

17:03

HELLER tow with the assistance of the LOYD MURPHY, OTTAWA and CREVE COUER begin moving downriver toward the canal.

17:33

The tow of the HELLER allides with the Marseilles Canal wall.

         (R.863, Uncontested Timeline).

         IV. Weather Forecast Products

         A. Product Differences

         A significant portion of trial testimony in this case concerned weather forecast tools available to the Dale Heller and Ingram's shoreside personnel throughout April 14-18, 2013, elicited to address Claimants' arguments that the Dale Heller should not have proceeded to Ballards Island on April 17 given the weather forecasts. These tools included, among others, (i) Hazardous Weather Outlooks; (ii) Significant River Flood Outlooks; (iii) five-day precipitation maps; (iv) flood warnings and watches; (v) weather forecast summaries; and (vi) river stage forecasts. Both parties offered expert testimony regarding the weather conditions at Marseilles in April 2013.

         Claimants' meteorology expert, Dr. Peter Hildebrand, for example, interpreted data from a variety of sources, including climate and hydrological data from the National Oceanic and Atmospheric Administration (“NOAA”), weather data and forecasts from the National Weather Service (“NWS”), river gauge data from the Corps, and weather data and forecasts from the North Central River Forecast Center (“NCRFC”), a branch of the NWS. (TREX 2231, Hildebrand Rep. at Appendix A). Dr. Hildebrand explained that the regional NWS office-the Chicago Weather Forecast Office (“WFO”)-is responsible for the “official forecasts and warnings” covering the Marseilles area, including “hazardous weather warnings, flood warnings, storm warnings . . . [and] textual forecasts.” (09/21 Hildebrand Tr. at 156-57; 09/22 Hildebrand Tr. at 271). The Minnesota-based NCRFC, meanwhile, is responsible for “putting out the river forecast.” (09/21 Hildebrand Tr. at 155). The river forecasts “contain stage and/or flow forecasts for specific river/stream locations based on existing and forecast hydro-meteorological conditions. The contents of these products are used by the [WFO] to prepare WWA products (Watches, Warnings, and Advisories)[.]” (TREX 2246). In generating their respective products, the WFO and the NCRFC each use, in part, the quantitative precipitation forecast (“QPF”) transmitted by the national NWS office in Maryland. (09/21 Hildebrand Tr. at 155, 157).

         The QPF is a “precipitation forecast over a given area and period of time. It is incorporated into river forecasts to help predict flood potential or river rises to other critical levels.” (09/22 Hildebrand Tr. at 239; TREX 2246). As Dr. Hildebrand testified, WFO products such as Hazardous Weather Outlooks incorporate a five-day QPF among other inputs, whereas the NCRFC river forecasts-depicted graphically in “hydrographs”-incorporate a 24-hour QPF. (09/22 Hildebrand Tr. at 200, 202, 221-22, 245). Dr. Hildebrand characterized the use of a 24hour QPF for river forecasts as “routine, ” given the concern about “its inaccuracy at longer times and not wanting to have false positives.” (Id. at 200, 222, 248; see also 09/21 Hildebrand Tr. at 174 (“the choice of the word ‘outlook' probably just relates to the uncertainty in [the] precipitation forecast; that they start out being very accurate in the first 12 hours, and by the time you're a week out, they're a lot less accurate. They might be right or they might be wrong. So [the significant river flood outlook] uses a five-day forecast, which is less accurate than a one-day”). At the same time, however, Dr. Hildebrand recognized the “limitation” in using a 24-hour QPF - specifically, its limited predictive value beyond that 24-hour period. (09/22 Hildebrand Tr. at 203). The NCRFC hydrograph for the Marseilles Pool, [17] for example, contains a textual note, advising that “[r]iver forecasts for this location take into account past precipitation and the precipitation amounts expected approximately 24 hours into the future from the forecast issuance time.” (Id. at 204; TREX 2226). Stephen Pryor-Ingram's applied meteorology expert- however, declined to characterize this as a “limitation, ” observing that at least one Morris hydrograph “appear[ed] to be predictive of conditions beyond 24 hours.” (09/30 Pryor Tr. at 89).

         Dr. Hildebrand further testified that weather products such as Hazardous Weather Outlooks, Significant River Flood Outlooks, and five-day precipitation maps, were readily available to the public in April 2013. (09/21 Hildebrand Tr. at 156-59, 171-72, 186; 09/22 Hildebrand Tr. at 195).[18] Ingram's meteorology expert, meanwhile, agreed that “hazardous weather outlooks, flood warnings, and flood watches, once issued by the [NWS], are then available to the public.” (09/30 Pryor Tr. at 1159). Glen Dotts (“Dotts”)-an Ingram employee in the customer service department-testified similarly, noting that he would cut and paste bits of weather information from “a variety of public sites; National Weather Service, weather.com, NOAA[, ]” to create a “courtesy” weather package most weekday mornings. (R.867, Dotts Dep. Tr. at 56-57, 81-82).

         B. Expert Opinions

         Ultimately, Dr. Hildebrand opined that “[NWS] products read considerably differently than what you see coming out of the [NCRFC], ” with NWS products being “more ominous and specific” than NCRFC river stage products throughout April 14-18, 2013. (09/22 Hildebrand Tr. at 236-37, 272). According to Dr. Hildebrand, “anybody who was being thoughtful about the use of this data would see that after 24-out beyond 24 hours, this [river stage forecast] was not a good forecast tool to figure out what should I be doing. There were other things out there [i.e., Hazardous Weather Outlooks, weather forecast summaries, and Significant River Flood Outlooks] readily available that would-should change your opinion about what's going to happen and then affect your actions.” (Id. at 214-15). In short, the NWS forecasts issued on April 14-16, 2013 were, in Dr. Hildebrand's opinion, “accurate and . . . adequate information to know that this was a situation where more flooding would likely occur.” (Id. at 196-97).

         Stephen Pryor, meanwhile, concluded that the “official river forecast issued at 9:59PM on April 17, 2013 . . . was the first official forecast for a peak river stage above flood stage at the Morris gauge . . . [and which] included, for the first time, a 48-hour precipitation forecast instead of a 24-hour precipitation forecast.” (TREX 91, Pryor Rep. at 16; 09/30 Pryor Tr. at 1140). In addition, Pryor testified that an “exceptional amount” of rain fell in the 24-hour period immediately preceding 7:00AM on April 18, 2013, and that the April 2013 flood event at Marseilles peaked “significantly faster” than the previous record flood event in September 2008. (TREX 91, Pryor Rep. at 16; 09/30 Pryor Tr. at 1141-46). In terms of forecast tools, Pryor characterized “outlook” products as “fairly general in aerial coverage [and] unlike the official river forecast, not specific to a particular gauge at a particular time on a particular day and with a particular gauge height.” (09/30 Pryor Tr. at 1146). The “primary basis” for his expert testimony, thus, was “the official river forecast.” (Id. at 1161). Pryor “did not spend a lot of time looking at hazardous weather outlooks because they weren't specific to the flooding situation on April 18th and the barge allision.” (Id. at 1155-58). From his “perspective . . . [as] a meteorologist, ” however, “you'd probably want to be looking at the big picture, everything that's available to you, including . . . the outlooks and longer-range forecasts at that time.” (Id. at 1165).

         V. Weather Information Available April 14-15, 2013

         In the afternoon of Sunday, April 14, 2013, the Chicago WFO issued a Hazardous Weather Outlook covering LaSalle County, Illinois, [19] advising-among other items-that “periods of heavy rainfall are possible Wednesday and especially Wednesday night.” (TREX 2234 at 1). In addition, an NCRFC-issued five-day Significant River Flood Outlook indicated areas of “possible, ” “likely, ” or “imminent/occurring” flooding in the drainage basin above Marseilles. (TREX 2231, Hildebrand Rep. at Figure 4; 09/21 Hildebrand Tr. at 172-73). Even after accounting for drainage flows on the Illinois River, however, the scientists who created the April 14, 2013 outlook did not “predict any chance of significant river flooding in the area of Marseilles.” (09/22 Hildebrand Tr. at 224-25).

         The next morning, Dotts sent an e-mail to Ingram's shoreside personnel, with the subject line “hydrographs, precip/weather and forecast info.” (TREX 2000). This e-mail included (i) a five-day precipitation map showing three to four inches of rain falling in northeastern Illinois; and (ii) a Morris hydrograph, showing the Illinois River gauge gradually declining through Monday, April 22. (Id. at 29, 34). Later that morning, the NWS-WFO issued another Hazardous Weather Outlook covering LaSalle County, advising, in part, about “an increasing potential for very heavy rainfall across the area Wednesday night and Thursday. Several inches of rainfall are possible and this could exacerbate the ongoing river flooding[.]” (TREX 2234 at 4). A Significant River Flood Outlook, meanwhile, indicated an expanded area of possible, likely, and/or imminent flooding, covering much of Illinois - including Marseilles. (TREX 2231, Hildebrand Rep. at Figure 6; 09/21 Hildebrand Tr. at 179-80). According to Dr. Hildebrand- given the prior rainfall and the soil saturation approaching April 15-“the rivers were not in flood, but they were close to it.” (Id. at 164-65, 178).

         VI. April 16, 2013

         A. The Morning

         At 6:59AM on Tuesday, April 16, 2013, Dotts e-mailed another weather package to Ingram shoreside personnel. (TREX 4). This e-mail included: (i) a five-day precipitation map showing over four inches of rain falling in northeastern Illinois; (ii) a Significant River Flood Outlook indicating potential or imminent flooding for most of Illinois through April 20; and (iii) a Morris hydrograph, showing the river gauge rising to a crest of 11.3 feet-well below flood stage-on April 17, gradually declining thereafter. (Id. at 28, 32, 34; see also TREX 1). One recipient of the e-mail-Robert Taylor-then “edited” the weather e-mail and forwarded it to Ingram vessels, including the Dale Heller. (R.867, Taylor Dep. Tr. at 10, 13, 15). In particular, Taylor testified that he would delete non-pertinent river information, as well as certain charts in order to reduce file size, otherwise “the e-mail won't go out. It's just physically too big.” (Id. at 15-18). Thus, while Captain White received the Morris hydrograph from Taylor, he did not receive 5-day QPF products, such as the Significant River Flood Outlook. (09/28 White Tr. at 791-92, 803; 09/29 White Tr. at 948-51). The received Morris hydrograph, moreover, did not bear the textual note advising of the 24-hour QPF input, because-as Dotts testified-“it's easier to cut and paste the picture versus the whole page. It looks messy.” (R.867, Dotts Dep. Tr. at 102-03; TREX 4 at 28). According to Taylor, however, vessel crews could always access weather information online, via the onboard internet connection. (R.867, Taylor Dep. Tr. at 18). Ingram's maritime expert-Captain Schropp-likewise testified that “the subscriber Internet program WeatherWorks was available; the weather packets were sent via Internet from Ingram Barge Company; and, the VHF weather channel was available” to the Dale Heller. (10/05 Schropp Tr. at 1631).

         At 11:19AM on April 16, the Dale Heller finished locking northbound through the Dresden Island Lock and Dam. (R.863, Uncontested Timeline). By this time, the NWS-WFO had issued another Hazardous Weather Outlook covering LaSalle County, as well as a flood warning for the Illinois River at LaSalle. (TREX 2234 at 7; TREX 2236 at 1). Although this warning predicted “minor flooding” and applied to the Illinois River downstream of Marseilles, (TREX 91, Pryor Rep. at 7), it also advised that “the current forecast only accounts for rainfall expected through early Wednesday and not the forecast heavy rainfall in excess of 2 inches the rest of Wednesday through early Friday. If these heavy rainfall totals are attained . . . many locations along the Illinois River will experience more significant rises late this week than indicated in the current river level forecasts.” (TREX 2236 at 1). Local media outlets, such as the Chicago Tribune, likewise reported “heavy rains, possible severe weather this week, ” predicting what “[c]ould be one of the wetter weather systems of the past 2 years.” (TREX 2365 at 6).[20]

         B. The Afternoon

         The Dale Heller arrived at Channahon around 1:45PM. (R.863, Uncontested Timeline). Once there, it dropped off its 15-barge northbound tow and picked up its southbound tow, including thirteen loads and one empty. (09/28 White Tr. at 799; TREX 11). This 14-barge tow configuration resulted in a “notch” at the port head - that is, two barges across the front of the tow instead of three. (09/28 White Tr. at 800). Numerous witnesses, however, testified that a “notch” configuration was neither an unusual configuration on the Illinois River, nor a cause for concern in terms of navigating within the Marseilles Pool and into the Marseilles Canal on April 17-18, 2013. (Id. at 800, 811-13; 09/29 Koeller Tr. at 1065-66; 10/03 Shrader Tr. at 1322; 10/04 Henleben Tr. at 1444-45; 10/05 Schropp Tr. at 1628-29).

         Meanwhile, the NWS issued updated Hazardous Weather Outlooks and a Significant River Flood Outlook covering the Marseilles area. (TREX 2231, Hildebrand Rep. at 12-13). At 4:31PM, the NWS-WFO issued a flood watch for LaSalle County, effective Wednesday afternoon (April 17) through Friday morning (April 19), advising that “area streams and rivers that are currently near or at flood stage will likely rise to moderate or major flood stage.” (TREX 2235 at 2-3). As NWS documents recite, “[a] Flood Watch is issued to indicate current or developing conditions that are favorable for flooding. The occurrence is neither certain nor imminent.” When a watch is issued, however, “you should begin to gather more information about the situation[.]” (TREX 2246). No one told Captain White about that flood watch, or the prior flood warning applicable to the Illinois River at LaSalle. (09/29 White Tr. at 958).

         C. The Evening

         At 8:56PM, before departing Channahon, Captain White called the Marseilles Lock to inquire about gate settings. (TREX 5000, Clip 1). The lockhouse informed him that the gate opening was at “17 foot and rising[, ]” which was “already above the stage or pretty close to the stage that [Captain White] would not go down into [the] canal because of the outdraft.” (09/28 White Tr. at 806-09). In Captain White's experience-regardless of tow size or load-once the gates reached that setting, “the outdraft gets so strong right here at the very upper end of the canal that it will pull you out toward the cells, and normally you're going to break up and your barges [are] going out on the dam.” (Id. at 820; see also R.867, Deaton Dep. Tr. at 36 (“the more the gate's open, the more current that is pulling so there's more outdraft”)). Indeed, the Corps usually posts an “outdraft warning” sign near the canal entrance when the dam gates are set to 15 feet or more of total gate opening. (R.846-1, Stmt. of Uncontested Facts ¶ 67; 09/28 Rodriguez Tr. at 631, 663-64). Similarly, the Waterways Action Plan (“WAP”)-a document developed by representatives of the Coast Guard, the Corps, and the river towing industry, and “used as a guideline for a crisis” on the Illinois Waterway-states that “tows typically stop navigation above 20-25 feet of dam gate opening due to out draft conditions, ” although “industry gave [the Corps] those reference numbers.” (TREX 8 at 1, 20; R.867, Zerbonia Dep. Tr. at 75-76; R.881, Neubauer Dep. Tr. at 273). Other industry representatives testified similarly. (R.867, Deaton Dep. Tr. at 30-32 (testifying that “20 to 22 feet” would be the “maximum gate opening… [he's] willing to pass at the dam” headed southbound with 15 empty barges); R.867, Daniel Dep. Tr. at 63-64 (“That is just pretty much rule of thumb for all of us that run with a full tow up there; that we do not fool with it much over 20 feet”); R.867, Hughes Dep. Tr. at 67-68, 71-72 (“somewhere around the 18 to 20 foot range” is the “maximum safe setting” for such a passage)).

         After learning about the gate settings, Captain White informed the Marseilles Lock that he'd “probably stop at the island”-that is, Ballards Island-to wait out the weather. (TREX 5000, Clip 1; 09/28 White Tr. at 806-09). In other words, although the gate setting at Marseilles had already exceeded Captain White's comfort level by the time he left Channahon, he anticipated-based on the April 16 Morris hydrograph depicted below-for the river level to rise, to crest below “action” stage on April 17, and then to fall, enabling him to transit past the Marseilles Dam at a safe gate setting thereafter. (09/28 White Tr. at 803-06, 816-17; TREX 1).

         (Image Omitted.)

         As Captain White testified, “I didn't see, from looking at our graphs in the daily river stages, that the river was going to go much higher after 24 hours before it crested and started falling out, so there's really no reason for me to stop.” (09/28 White Tr. at 816-17). Indeed, commercial towboats and lock-and-dam facilities were operating normally on April 16, 2013, as called for under the WAP. (Id. at 814; TREX 8 at 21). Accordingly, around 9:48PM, the Dale Heller departed Channahon, headed southbound with its fourteen-barge tow. (R.863, Uncontested Timeline).

         Captain White acknowledged, however, that-in hindsight-had he known on April 16 “that the Illinois River had an outlook for significant river flooding, [he] would have tied up between Channahon and Marseilles[.]” (09/29 White Tr. at 990-91). Dr. Hildebrand's expert testimony and the Dotts e-mails support that such an “outlook” was publicly available for the general “Illinois River.” (E.g., TREX 5 at 34; TREX 2231 at 13, Fig. 9). As Dr. Hildebrand acknowledged, however, both the Dale Heller's departure city (Channahon) and arrival city (Marseilles) were within the area of possible river flooding on April 16, 2013. (09/22 Hildebrand Tr. at 225-27). As Ingram's maritime expert explained, that “possibility” is “why I refer to hydrographs and river forecasts.” (10/05 Schropp Tr. at 1689-90; see also Id. at 1631 (“To find out about navigation and piloting, I have to look at river stages”); see also 09/30 Pryor Tr. at 1146 (an outlook “basically discusses the possibilities of what weather events may occur during that period of time”)). That “possibility” is also why industry, the Coast Guard, and the Corps chose to rely on specific river gauge readings-and not general weather information-as trigger points for various actions under the WAP. (10/04 Henleben Tr. at 1437-40 (using general weather information “created some ambiguity and a lot of problems with not knowing what the exact weather forecast was going to be”); 09/28 Hess Tr. at 737-38 (“[Q]. And if any of [industry, the Coast Guard, or the Corps] thought that any of these reference stages that we see listed in the annex were incorrect or insufficient, they could have objected to it or raised the issue, correct? [A]. Correct”)). Long-range “outlook” information, moreover, was available not only to the Dale Heller, but also to the Coast Guard and the Corps. (09/22 Hildebrand Tr. at 225- 27). The Coast Guard and the Corps nonetheless continued normal operations on the Illinois River, even after the NWS issued another flood watch at 9:37PM. (R.867, Beckman Dep. Tr. at 24; R.881, Neubauer Dep. Tr. at 46-52; TREX 2235 at 5-6).

         At 11:57 PM, the Dale Heller began locking southbound through the Dresden Island Lock and Dam. (R.863, Uncontested Timeline).

         VII. April 17, 2013

         A. The Morning

         Around 2:07AM, while locking through the Dresden Island facility, Pilot Shrader and an Ingram deckhand, Sam Guge, discussed impending rainfall and the existence of a flood watch in the area. (TREX 4000, Clip 3). Neither told Captain White about the flood watch. (09/29 White Tr. at 959-61). As the Dale Heller transited from Dresden to Ballards Island, however, Captain White was aware that the Metropolitan Water Reclamation District of Chicago (“MWRD”) was releasing more water downriver, that the Illinois River was rising, and that more rain was expected. (Id. at 994; see also 10/03 Shrader Tr. at 1365-69 (testifying similarly)). Captain White further acknowledged the existence of mooring facilities between Dresden and Ballards Island, agreeing that, “if things got tough and [he] had to tie up at one of those locations and [he] tied [his] tow up securely, this accident would have not happened.” (Id. at 963-64). Once the Dale Heller transited southbound from Dresden Island through the Johnson Island Cut, moreover, those upriver mooring facilities were no longer an option. (Id. at 934-35; see also R.867, Holt Dep. Tr. at 59, 63-67 (testifying that, upon request, Ingram's customer service team could “try to locate fleeting space” to hold extra barges, but a vessel captain could refuse or modify tow configuration decisions)).

         In the morning of April 17, however, Captain White received and reviewed an updated Morris hydrograph. (Id. at 817-19). Hydrographs, as the trial record reflects, incorporate factors such as soil saturation, temperature, past precipitation, and downriver MWRD discharges. (R.881, Buan Dep. Tr. at 54-55, 61, 124-25; R.867, Nock Dep. Tr. at 101). In particular, the NCRFC uses hydrological models and applies the professional judgment of its team of hydrologists, meteorologists, and hydrometeorologists-in consultation with the Corps and the United States Geological Service-to create the official river forecasts each day. (R.881, Buan Dep. Tr. at 157, 21, 24-25, 58-61, 83). As its corporate designee testified, the NCRFC is aware that the public-including commercial river mariners-rely on its daily forecasts. (Id. at 41). Accordingly, the NCRFC runs quality control checks and continually strives “to improve the process so that the daily river forecast can be as accurate as it possibly can be given today's science[.]” (Id. at 39).

         The April 17 Morris hydrograph-as depicted below-indicated “that the river was going to rise on up from 11.47 up to 12.1 foot and crest and can start falling back out.” (09/29 White Tr. at 817-19). Captain White's plan, thus, was “to wait for the water to drop down to 16 or 17 feet of gate [which] according to [the hydrograph] . . . wouldn't have been a day or two.” (Id.).

         Image Omitted.

         (TREX 2, TREX 5). The WAP called for “normal operations” under such conditions. (TREX 8 at 21; see also R.867, Zerbonia Dep. Tr. at 57-58, 62; R.867, Beckman Dep. Tr. at 24; R.881, Neubauer Dep. Tr. at 46-52; 09/28 Rodriguez Tr. at 725-26 (Corps and Coast Guard testimony corroborating the same)). Neither Captain White nor Pilot Shrader, thus, felt the need to stop upriver of Ballards Island on the morning of April 17, 2013. (09/28 White Tr. at 822-23 (“the river stages didn't give me any information that the river was going to rise like it did . . . what it was showing, I was very comfortable with”); 10/03 Shrader Tr. at 1325-26 (“This was done normal conditions, operating conditions”)).

         It is not rare, after all, for river towboats to operate in heavy rain and high waters. (10/03 Shrader Tr. at 1326-27 (“[Q]. Is it rare to do that? [A]. To operate in those conditions? No”); see also 09/29 McNees Tr. at 1016-17 (“[Q]. Have you been on the Dale Heller operating in flood conditions before? [A]. Yes. [Q]. Is it rare? [A]. No. [Q]. Describe for us the ability of the Dale Heller to operate in heavy rain. [A]. Does it all the time”); see also, e.g., R.867, Hammond Jr. Dep. Tr. at 83 (“In all my experience, I've seen in many years heavy rains that-that increase the rivers by feet, many feet; and we have to navigate . . . in those conditions”); cf. R.867, Stunkel Dep. Tr. at 61 (“[Q]. In your experience operating on the Illinois, is it unusual for there to be high water during the springtime? [A]. No”); 09/22 Hildebrand Tr. at 218 (“[Q]. Are you aware that towboats often operate in flood conditions? [A]. Yes”)). Indeed, both the Loyd Murphy and the City of Joliet operated their tows within the Marseilles Pool on April 17, 2013, locking northbound through the Marseilles Lock and Dam. (TREX 2048; TREX 151; 10/03 Ice Tr. at 1183-92; R.867, Deaton Dep. Tr. at 72-73; 09/28 Rodriguez Tr. at 657-58).[21]

         Around 7:35AM, the Dale Heller arrived at Ballards Island. (R.863, Uncontested Timeline). The Dale Heller backed into the island, with downriver currents pushing on the starboard side of its tow. (09/22 Kinsey Tr. at 349-51 (“as long as the stern of the towboat stays close to the bank, the current holds the tow in”)). Upon arrival, Captain White called the Marseilles lockhouse to inquire about gate settings. After learning that the gates were set to 23 feet, he informed the lockhouse that he would “back in up here on the island and wait for the water to drop down before I come down any canal.” (09/28 White Tr. at 817; id. at 819 (“My plan was to wait for the water to drop down to 16 or 17 feet of gate before I tried to go down any canal;” see also TREX 5000, Clip 3). Captain White subsequently called Koeller, an Ingram shoreside dispatcher, to inform her of his plan to “wait out the weather.” (TREX 5000, Clip 4A (“It's coming up pretty quick, but the river stages show it is going to drop out. But I just want you to know we, we was going to wait here until it dropped back down to try to get down in that canal”). Subsequent to this conversation, Koeller and her supervisor, Adrienne Moore, had further conversations with the Dale Heller on April 17, to see if they could “get them to go with fewer barges or see what options were available.” (09/29 Koeller Tr. at 1066-68; 09/29 Moore Tr. at 1036-38, 1056-57). Although Captain White and Pilot Shrader “complained” to each other about “being pressured to move the barge, ” (09/29 White Tr. at 968), [22] the record reflects that Captain White exercised his authority, as the licensed vessel captain, to delay transit on April 17, regardless of shoreside preferences. (TREX 46, Ingram Vessel Policy on Navigation (“The vessel Captain or wheelhouse person on watch must navigate the vessel in a safe and prudent manner . . . [including] Using the judgment of a prudent mariner and stopping operations when conditions dictate”); 09/28 White Tr. at 82; 10/04 Henleben Tr. at 1434-35) (testifying to the same)). It is undisputed that the Dale Heller and its tow remained at Ballards Island until the early evening of April 18. (R.863, Undisputed Timeline).

         B. The Afternoon

         By 1:16PM, the NCRFC had issued an updated Significant River Flood Outlook, indicating “likely” flooding in the area of Marseilles. (TREX 2231, Hildebrand Rep. at Fig. 12; see also TREX 39; R.867, Nock Dep. Tr. at 27-28 (testifying to his 2:00PM e-mail concerning heavy rains in the area; but see R.867, Hammond Jr. Dep. Tr. at 81-84 (two to four-inch storm totals are “customary for high water . . . I see this frequently”)). The most up-to-date river forecast, though, still showed the Morris gauge peaking below flood stage. (TREX 7, April 17, 2013 11:49AM River Forecast). Indeed, the Coast Guard saw no reason to host a high-water call for the Illinois River Carriers Association (“IRCA”) on April 17, 2013. (R.881, Neubauer Tr. at 50-52; see also R.867, Heroff Dep. Tr. at 45-51, 65 (testifying that, although Nock's weather e- mail “comes out when high water and lock closures become an issue, ” IRCA calls “only happen if there are things of concern” - in other words, “where we're talking about the WAP . . . you could pretty much be certain there would be an IRCA call that day”)). IRCA-as discussed more fully below-is a joint association of towage companies and government agencies, formed to disseminate information and to facilitate navigation on the Illinois River.[23]

         C. The Evening

         In the early evening of April 17, the Loyd Murphy and its fifteen-barge tow (ten loads, five empties) locked through the Marseilles Lock, headed northbound. (R.863, Uncontested Timeline; R.846-1, Stmt. of Uncontested Facts ¶ 44). After navigating past the Marseilles Dam, Captain Ice determined that upriver conditions at Johnson Island Cut would be too difficult to traverse with his tow. (10/03 Ice Tr. at 1184-85 (“running Johnson Island Cut at the gate opening that they had at the time was not a safe move due to the fact that it's shallow and rocky”)). Accordingly, Captain Ice decided to stop and wait out the river conditions, expecting to proceed northbound “maybe the next morning or so.” (Id. at 1185-86). After an unsuccessful attempt to moor at a rocky area known as Gum Creek Light, Captain Ice radioed over to Captain White to discuss whether the Loyd Murphy could also position itself at Ballards Island until the water levels reduced. (Id. at 1186-88). Captain White told Captain Ice that he was “welcome to come over here and tie off the side of [the Dale Heller], but once he got tied off, he would have to keep his engines clutched in to help hold the barges.” (Id. at 1188; 09/28 White Tr. at 825-27; TREX 5000, Ice Clip 3). Around 8:35PM, the northbound-facing Loyd Murphy shoved in alongside the Dale Heller, securing their tows together through various head and stern lines. (R.863, Uncontested Timeline; 10/03 Ice Tr. at 1189). The combined flotilla, thus, consisted of 29 barges - six barges wide and five barges long, 210 feet across and almost 1, 000 feet in length. (R.846-1, Stmt. of Uncontested Facts ¶ 72).

         Before retiring for the night, Captain White informed Pilot Shrader and Ingram shoreside personnel that the Marseilles Lock was running 25 feet of gate-a two-foot increase since 7:35AM-and “looking to go up to 28 feet by morning.” (TREX 5000, Clip 7A; 09/28 White Tr. at 829; TREX 168; 09/29 Moore Tr. at 1038-39). Captain Ice, meanwhile, informed Pilot Daniel that “it was . . . still raining out . . . [and] they were running a substantial amount of water through the dam; and, we were going to hold up and see if conditions got better by morning.” (10/03 Ice Tr. at 1192). At this time, the combined flotilla was holding its position “relatively easily.” (09/28 White Tr. at 828; 10/03 Ice Tr. at 1190-92).

         At 9:59PM, however, the NCRFC issued its first forecast predicting “flood stage” status at Marseilles. (TREX 7; R.867, Glaudesman Dep. Tr. at 40 (“[Q]. So . . . 9:59 p.m. [CDT] on April the 17th was the first time there was a prediction from the National Weather Service that the river stage at the Morris site would exceed the flood stage of 16.0 feet? [A]. Correct”); 09/30 Pryor Tr. at 1140). This forecast incorporated-for the first time-48-hour QPF, instead of the customary 24-hour QPF. (R.881, Buan Dep. Tr. at 64, 66-69, 91-94; 09/30 Pryor Tr. at 1140). As Claimants' own expert explained, the decision to change the QPF input resulted from “discussions between the Chicago Forecast Office and the [NCRFC]. And they actually talk to each other fairly often, daily . . . they talk about it when any storm's happening.” (09/22 Hildebrand Tr. at 209). The 48-hour QPF, as discussed supra, has “notorious false positives . . . or false negatives.” (Id.). In other words, “the probability of error goes up.” (Id. at 248). Once the NCRFC “became confident enough in the 48-hour QPF, ” however, they began to incorporate it in their daily river forecasts. (Id.). As it turned out, “[i]n this case, it was highly accurate, but they didn't know that. They hadn't made that determination.” (Id.).

         Around 10:30PM, the NWS made this 9:59PM river forecast available on its website. (R.867, Glaudesman Dep. Tr. at 41-42). At 10:31PM, it issued a flood warning for the Illinois River at Morris, forecasting “moderate flooding” and a “rise to near 21.1 feet by Friday evening.” (TREX 2236 at 4-5).

         VIII. April 18, 2013

         A. The Morning

         By the time Captain White and Captain Ice came back on watch at 5:00AM, river conditions had worsened. (09/28 White Tr. at 830; 10/03 Ice Tr. at 1193; R.867, Daniel Dep. Tr. at 88-90 (“We started having a little more trouble holding the tow”)). Pilot Shrader, for example, informed Captain White that the Marseilles Dam's gate settings had increased, and that-on two separate occasions-he had to clear drift out of the Dale Heller's wheel. (10/03 Shrader Tr. at 1333-36; TREX 5000, Shrader Clips 3 and 4). Drift refers to floating debris on a river, including trees, tires, buoys, and other items, “that can get in the propellers of a boat and stop the engines.” (09/28 White Tr. at 795-97). To clear the drift from an engine, a boat must either push or back on that engine in the reverse direction, temporarily losing horsepower. (Id.). Drift is “particularly dangerous, ” therefore, when a boat is unmoored in high, fast water. (Id.; see also 10/03 Ice Tr. at 1226; 10/03 Shrader Tr. at 1335-36). The Dale Heller continued to encounter drift throughout the morning of April 17. (09/29 White Tr. at 859-64; TREX 5000, White Clips 12 and 13).

         Around 7:08AM, Captain White called Henleben to “let him know that the situation where we [were] at was deteriorating pretty rapidly and I had concerns about losing the barges.” (09/29 White Tr. at 842). With respect to gate settings, Captain White noted that the Marseilles Lock was already running 55 feet of gate and expected to open even more - which meant “that the current was going to get a whole lot worse than what it already was.” (Id. at 843-44; TREX 5000, White Clip 10 (“we're up to 55 feet down here at, uh, at Marseilles . . . it's a handful right now and they're talking about going up at least ten more foot up to 65 here. I don't know whether we're going to be able to hold it or not, I really don't . . . Yeah, I mean I knew it was going to raise some more but I never anticipated this”)). Captain White advised Henleben that “if push comes to shove . . . I would un-face from the barges and release them because I wasn't going to put the crew and the boat in jeopardy of going over the dam[.]” (Id. at 844-45; TREX 5000, White Clip 10). He also informed Henleben, with respect to the Loyd Murphy, that they were “probably . . . better off with [Captain Ice], in case something does happen he stands half a chance of maybe holding long enough for us to get something going[.]” (Id. at 850-51; TREX 5000, White Clip 10).

         Between 8:00 and 8:30AM, Captain White received and reviewed a new river forecast at Morris, predicting an April 19 crest of “21.1 feet, just below major flood stage.” (09/29 White Tr. at 857-59; see also TREX 3; TREX 6). The April 18 Morris hydrograph depicted:

         Image Omitted.

         This hydrograph incorporated NCRFC's April 17, 2013 9:59PM forecast data. (See id.). Such conditions constituted “extreme high water” under the WAP. (TREX 8 at 21).

         That morning, RIAC-IRCA scheduled an “emergency conference call to discuss rapidly rising Illinois and Mississippi River levels that were caused by a 24-hour period of heavy rains across Northern Illinois [and] projected to hit record levels at several points south of Dresden Lock (including at the Marseilles Lock within the next 12-hours from the start of the call).” (TREX 17, Neubauer Statement Regarding IRCA Call; R.881, Neubauer Dep. Tr. at 25-26; R.867, Miller Tr. at 30-31; TREX 144 at 2-3, 8:36AM E-mail from Heroff to RIAC Members (“We will have a call today at 1400 to discuss high water, lock closures and WAP”); id. at 1-2, 9:52AM E-mail from Terry Wiltz to IRCA Members (“We have a call along with RIAC for high water on the Illinois. We will follow after RIAC”)). The RIAC/IRCA call occurred at 2:00PM that day. (R.863, Uncontested Timeline).

         1. Alternatives to Holding at Ballards Island

         In light of the deteriorating river conditions on the morning of April 17, the two vessel captains considered-but ultimately rejected-a number of alternatives to holding the flotilla at Ballards Island. Captain Ice proposed, for example, dropping downriver to the slack water underneath Ballards Island. (10/03 Ice Tr. at 1202-04; TREX 5000, Ice Clip 6). White and Ice agreed, however, that this option was not safe due to the concern of drift “loading up in the wheels” of one vessel, leaving the other alone to hold the combined tow against rising river currents. (10/03 Ice Tr. at 1204; 09/28 White Tr. at 832-833 (“And if water comes down through here, it's-it's going to be hard for us to hold these barges here with that water pushing us out”); 09/29 White Tr. at 852, 864). The captains also considered (i) un-facing the Loyd Murphy to have it push up underneath both tows; and (ii) moving the Dale Heller to the head of its tow to have it push ahead, instead of backing astern. Given, however, (i) the difficulty of facing up to a “notched” barge, [24] (ii) the time it would take to perform such an un-facing maneuver, and (iii) the risk-given the swift water and the increasing drift-of the Dale Heller getting stuck underneath the Loyd Murphy's tow, the captains determined that these alternatives were less safe than maintaining the status quo, with the combined horsepower of both vessels pushing and backing at once. (09/28 White Tr. at 830-31, 833-34, 865; 10/03 Ice Tr. at 1208-11; 10/05 Schropp Tr. at 1651-52; TREX 5000, White Clip 9; TREX 5000, Ice Clips 8 and 10).

         The captains also weighed, and rejected, the idea to break up the flotilla and either (i) leave the Dale Heller's tow in place by itself, (ii) move the Dale Heller's tow across the river and anchor it to some steel I-beams located there, or (iii) move tow “strings”-that is, smaller groups of barges-either upriver or into the Marseilles Canal. (10/03 Ice Tr. at 1205-07, 1213; TREX 5000, Ice Clip 11). The first option was not feasible because the Dale Heller “couldn't hold where he was at by himself.” (10/03 Ice Tr. at 1206; TREX 5000, Ice Clip 7). The second “wasn't an option” because-given the river currents-the Dale Heller's tow “could have topped around. Anything could have happened at that point in time . . . [Captain White] might not be able to hold it and would continue on downriver” into the dam. (Id. at 1206-07). In addition, the Loyd Murphy had already tried, on the evening of April 17, to shove against the right descending bank of the river, but it was too rocky to hold there. (TREX 5000, White Clip 17 (Captain Ice to Captain Hardin: “Yeah, I was over there yesterday and I was picking up rocks with the boat”); see also 09/29 White Tr. at 848, 865-69). As to the third option, an upriver transit pushing a string of barges was not possible because, according to Captain Ice, a string is a “weak coupling, ” and “[t]he minute you try to steer around [Johnson Island Cut], it would snap one of them couplings in half.” (10/03 Ice Tr. at 1213-14). There is no evidence, moreover, that reassembling the tow and taking fewer barges into the Marseilles Canal at then-existing gate settings would have been prudent. Even at the lower gate settings on April 17, Captain White had considered and rejected the idea of transiting into the canal with fewer barges. (09/28 White Tr. at 824 (“But it's like I told [Adrienne Moore], I said even if I got down to six barges, until water drops down to 17 feet, I'm not going down any canal”); see also R.867, Hardin Dep. Tr. at 103-04, 122-23 (“There was no option of getting in the canal, not with that-not with that much water running”); 10/03 Ice Tr. at 1213 (“It wouldn't be safe trying to separate those wires in that kind of current with all the drift and everything around. Somebody could have got hurt deck crew-wise”)).[25]

         Both Captain White and Captain Ice spoke with their respective port captains regarding these options. (09/29 White Tr. at 848, 851-53; 10/03 Ice Tr. at 1212; 10/04 Henleben Tr. at 1450-53, 1456-59, 1462). The vessel captains, however, retained the authority to decide whether, or not, to attempt a given maneuver involving their respective tows. (09/29 White Tr. at 851-53; 10/04 Henleben Tr. at 1451-53 (“[Q]. Whose ultimate decision was that? [A]. Both captains. The captain of the Loyd Murphy and the Dale Heller”). Ultimately, both Captain White and Captain Ice agreed that they were better off together, holding the combined flotilla at Ballards Island. (09/29 White Tr. at 869 (“But if we're separated and something happens to his boat, he's lost his barges, I couldn't help him at all. And same with me . . . It's just-it's just a safer situation to me for both crews on both boats”); 10/03 Ice Tr. at 1204-16 (testifying that he and Captain White reached joint conclusions about the viability and prudence of alternative mooring positions); see also R.867, Hardin Dep. Tr. 95-96, 103-04, 125-26 (“[T]hey were in safety mode and everything was safety, safety, safety. And they were-they were very leery about jeopardizing the safety of their crew or their barges”); R.867, Daniel Dep. Tr. at 135-36 (“[T]hey talked about everything to try to figure something out”)).

         2. Precautions Taken at Ballards Island

         While holding at Ballards Island throughout the morning and early afternoon of April 18, the Dale Heller and the Loyd Murphy took a number of additional precautions to ensure the safety of the vessels and their crews. (10/05 Schropp Tr. At 1652-53).

         a. Increased Rigging

         The vessel crews tightened the tow rigging. In particular, as conditions worsened, the crews “decided to wire the tows together” as “basically one big tow” using steel cables, instead of lines. (10/03 Ice Tr. at 1189-90; 10/05 Schropp Tr. at 1652). The Dale Heller also increased its own rigging, implementing the “strongest wire configuration that you can use” on a jumbo hopper barge. (10/05 Schropp Tr. at 1625-26 (“in anticipation of working down into the canal and the assist boats working alongside of them, they had gone to triple-up rigging”); R.867, Guge Dep. Tr. at 101-05).

         b. Securing the Tows to Trees

         In addition, at approximately 8:27AM, a crew from the Loyd Murphy and the Dale Heller tied the combined tow to some trees on Ballards Island, supervised by Captain Ice. (R.846-1, Stmt. of Uncontested Facts ¶ 74; TREX 5000, Ice Clip 5; 09/28 White Tr. at 834-35; 10/03 Ice Tr. at 1193-1201). The purpose of this tree-tying operation, Captain Ice explained, was “to anchor us in case one of us lost an engine due to drift or anything, ” given that-at that point in time-“I believe I was almost full ahead and [Captain White] was almost full astern and we were just holding what we had.” (10/03 Ice Tr. at 1195-96). Once the crews secured the flotilla to two trees, “[i]t seemed to ease where we didn't have to back and push so hard trying to hold it.” (Id. at 1201; see also 09/28 White Tr. at 835 (“they helped a lot . . . I didn't have to back as hard on my boat, and he didn't have to push as hard on his”)). It is common in the inland river industry to secure tows to trees. (10/03 Ice Tr. at 1196; 09/28 White Tr. at 834; 10/05 Schropp Tr. at 1652).

         c. Requesting Assist Boats

         Furthermore, both Ingram and IMS contacted assist boats on April 18 to request additional horsepower in holding the flotilla at Ballards Island. Captain Ice, for example, called Captain Hardin of the Nancy S., and deckhand Chauncey Rosenblad of the City of Ottawa. (10/03 Ice Tr. at 1213-14, 1217-18). Ingram, meanwhile, called inland river operators such as Marquette, AEP, and ARTCO, as well as local fleets. (09/29 Moore Tr. at 1041-42; 09/29 Koeller Tr. at 1068-69; TREX 167 (“The M/V Cody Boyd (AEP's boat) is turning their tow loose in Channahon and coming [southbound] to assist the DAH & M/V Loyd Murphy along with the Nancy S. (small ARTCO tug) assistance”)). In addition, Captain Deaton of the City of Joliet testified that, after receiving a call from the “captain of the Heller, ” he received permission from his employer, Kirby, to assist the flotilla. (R.867, Deaton Tr. at 88-89; see also 09/29 White Tr. at 856 (“I found one boat, and that was the City of Joliet; and, he had one load and one empty”); 10/03 Ice Tr. at 1218-21 (observing that the City of Joliet and its two barges “could fit in the notch at the head of the Heller's tow”)).

         The Nancy S. arrived at 8:35AM to help the flotilla hold position. (R.863, Uncontested Timeline). It departed at 10:59AM, after the City of Joliet arrived to wire into the tow. (Id.). The City of Ottawa, meanwhile, arrived at 11:48AM and departed at 1:04PM, after being relieved of its assistance duties by the Cody Boyd. (Id.; see also R.867, Beckman Dep. Tr. at 19-22; 09/29 White Tr. at 869-70). Both Captain Ice and Captain White testified to the usefulness of these assist boats in getting “all the horsepower that we could get down around these barges to kind of hold everything” at Ballards Island. (09/29 White Tr. at 871-72; 10/03 Ice Tr. at 1221-22). Both captains went off watch at 11:00AM on April 18. (Id.).

         B. The Afternoon

         1. River Conditions

         By the time Pilot Shrader resumed his watch at 11:00AM, the “flow had increased quite a bit” since 5:00AM. (10/03 Shrader Tr. at 1336-37). At 12:17PM, the NCRFC issued a new river forecast at Morris, predicting a record peak of 25.5 feet. (TREX 91, Pryor Rep. at 12-13). The latest observed river stage at Morris-18.53 feet-was over “moderate” flood stage status. (Id.). At 12:41PM, the NWS issued an updated flood warning for the Illinois River at Morris, forecasting “record severity” and advising that the “river will continue rising and crest between 24 and 26 feet early Saturday morning. Record crest is 24.84 feet set in September 2008.” (Id.; see also TREX 2236 at 4-6).

         During Pilot Shrader's afternoon watch, both trees securing the flotilla to Ballards Island gave way. (10/03 Shrader Tr. at 1338). The second tree uprooted around 2:15PM. (TREX 5000, Shrader Clip 5 (radio transmissions between the City of Joliet, the Dale Heller, the Cody Boyd, and the Loyd Murphy, “Looks like that last tree gave. I see slack in the cable . . . Yeah, it just pulled it all, you know, up.”)). After it fell, the flotilla moved slightly downriver, and then remained in place as the vessels applied full horsepower. (See Id. (“Yeah, I'm hooked up. Looks like she's dropping back . . . . I am too, and yes we are falling back . . . . We [are] all pretty much hooked up here . . . . We're all coming ahead. You know, looks good for now, but who knows.”); see also 10/03 Shrader Tr. at 1339; R.687, Daniel Dep. Tr. at 102-06; 10/03 Ice Tr. at 1222-23; 09/23 Fittanto Tr. at 588-93).[26] The City of Ottawa then offered to come back to Ballards Island to assist, along with a spud barge. (TREX 5000, Shrader Clips 5 and 6; 10/03 Shrader Tr. at 1339-40; R.867, Slack Tr. at 94, 99; R.867, Beckman Tr. at 38-39). At 3:04PM, the City of Ottawa arrived on scene. (R.863, Uncontested Timeline).

         2. The IRCA Call

         Meanwhile, around 2:00PM, the RIAC-IRCA conference call commenced. (R.863, Uncontested Timeline). Both industry and government representatives participated in the IRCA call, including Ed Henleben (Ingram), Adrienne Moore (Ingram), Carissa Koeller (Ingram), Thomas More (Ingram), Harold Dodd (ACL), Bernie Heroff (ARTCO), Shannon Hughes (Kirby), Rocky Young (AEP), Quenton Harris (Marquette), Craig Hess (Corps), Larry Rodriguez (Corps), Thomas Nock (Corps), Mike Zerbonia (Corps), Captain Jason Neubauer (Coast Guard), and Commander Miller (Coast Guard). (R.846-1, Stmt. of Uncontested Facts ¶ 75; R.867, Miller Tr. at 39-41). Among other discussion items, the IRCA participants discussed the situation at Ballards Island - in particular, the flotilla's difficulty in holding its position. (R.846-1, Stmt. of Uncontested Facts ¶ 76). Eventually, the IRCA participants set a general plan to break up the Ballards Island flotilla and to move the Dale Heller and its tow into the Marseilles Canal - a plan which involved the adjustment of gate settings at the Marseilles Dam and the use of assist boats. The Court recounts witness testimony concerning this portion of the call.

         a. Corps Testimony

         i. Lockmaster Rodriguez

         a. IRCA Statements on Gate Settings

         According to Rodriguez, while he was on the IRCA call, the assistant lockmaster-Floyd Smith-told him that the Dale Heller was having trouble holding at Ballards Island, and asked him whether they wanted to bring the Dale Heller down into the Marseilles Canal. (09/28 Tr. at 670-71). Rodriguez relayed that idea to the IRCA participants. (Id.). Rodriguez agreed that the IRCA participants subsequently asked him “what gate settings [he] could do to allow the Heller tow to pass into the canal, ” (id. at 675), but denied that there was a “gate-setting plan.” (Id. at 683-84). According to Rodriguez, when “asked how much gate that I could close . . . I told them 12 feet and, then, I changed it to 16 feet . . . all they got from me was the amount of feet that I could close the dam.” (Id.). Rodriguez did not testify as to whether or not he informed the IRCA participants about the then-existing gate setting at the Marseilles Dam. Contemporaneous handwritten notes, however, suggest that Rodriguez (or someone else) did mention an initial 66-foot gate setting. (TREX 19, Koeller IRCA Call Notes, (“Larry at Marseilles . . . 66'16'); see also R.867, Hughes Dep. Tr. at 39 (“[Q]. What was the current setting at that time? [A]. It was somewhere around 66 feet”)). According to hydraulic sheets maintained at the lockhouse, the total gate opening at the time of the IRCA call was 70 feet. (TREX 29 at 18).[27]

         b. Post-Incident Statements on Gate Settings

         Shortly after the allision, Corps representatives, including hydrologist Kevin Landwehr, interviewed Rodriguez as part of the Corps' post-incident investigation. (09/28 Rodriguez Tr. at 703-06; R.867, Landwehr Tr. at 6-7). On April 20, 2013, for example, Landwehr sent Rodriguez an e-mail asking him to confirm, among other details, the following: (1) “prior to the tow accident, the gates were set at 66' of total opening;” (2) “the transiting vessel requested that 16' of gate be closed to assist the downbound tow entering the canal;” and (3) “once the tow was beyond the final cell, re-opening of the gates to 66' was initiated.” (TREX 34). On April 25, 2013-one week after the allision-Rodriguez confirmed these details, noting, “This looks pretty consistent with what I said.” (TREX 33). Rodriguez testified that he knew “it was important to give [his] best answers” during that post-incident investigation, and “probably” remembered the gate settings better then, than during this trial. (09/28 Rodriguez Tr. at 706).

         On April 24, 2013-six days after the allision-Rodriguez prepared a witness statement for the Coast Guard, certifying it to be “true and correct” to the “best of [his] knowledge and belief.” (TREX 23). In it, Rodriguez stated the following:

At approx. 1645, after discussions, it was decided to start bringing Dale Heller into the canal with 14 barges. It was assisted by the City of Ottawa and Creve Coeur Corps boats and Loyd Murphy. I was running a dam at lock with 66 ft of gate open and closed 16.' The M/V City of Joliet came into the canal first with two barges no problem. Then the M/V Dave Heller made his approach with City of Ottawa on head, Creve Coeur at second coupling starboard side and then Loyd Murphy. As the tow was near or starting to get head in canal, I was directed to open the gates back up to 66 feet and I saw the City of Ottawa break off on the monitor. After he let go I saw the lead barges drifting toward the approach wall. Either just before it hit or when it hit I was ordered to shut the gates down. While this was being done we ...

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