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Alexander v. Ingram Barge Co.

United States Court of Appeals, Seventh Circuit

November 21, 2017

Larry Alexander, et al., Claimants-Appellants,
Ingram Barge Company, Petitioner-Appellee.

          Argued September 7, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 13 C 3453 - Amy J. St. Eve, Judge.

          Before Wood, Chief Judge, and Bauer and Sykes, Circuit Judges.

          WOOD, Chief Judge.

         At 5:33 in the evening on April 18, 2013, a 14-barge tow pushed by the M/V Dale A. Heller was sucked into a powerful cross-current and broke up. Some of the barges crashed (or allided, as mariners would say) into the Marseilles Dam; some sank; some were saved. The accident happened during record-breaking rains and high water, and a day later, the nearby town of Marseilles experienced significant flooding. This lawsuit, brought by a group who call themselves the Flood Claimants, represents an effort to fix blame for the allision and to recover for their flood damage. The Flood Claimants were stymied, however, when the district court ruled that the United States, which manages the Dam through its Army Corps of Engineers, was immune from suit for its role in the allision, and that the Corps was solely responsible for the accident. The Flood Claimants believe that Ingram Barge, the company that owns and operates the Dale Heller, shares some of the blame because of its failure to follow certain inland navigation rules and its more general negligence. We conclude, however, that the facts found by the district court were not clearly erroneous, and that those facts support the court's assignment of sole responsibility to the Corps.


         We have no need or desire to replicate the district court's painstaking, minute-by-minute, account of the events leading up to the allision and its immediate aftermath. We commend that court's opinion to those who are interested in the details. See In the Matter of the Complaint of Ingram Barge Co., 219 F.Supp.3d 749 (N.D. 111. 2016). We offer here only the highlights that pertain to the arguments on appeal.

         Geographically, we are talking about a stretch of the Illinois River that runs from the upriver town of Channahon, Illinois, down to the Marseilles Lock and Dam, just downriver from the town of Marseilles. The Illinois River is a tributary of the Mississippi River, which it joins at Grafton, Illinois, a short distance northwest of St. Louis, Missouri.

          Downriver from Channahon, which is about 50 miles southwest of Chicago, several points on the river play a part in this story. Dresden Island lies six miles downstream; another 26 miles down, at River Mile 248.0, is Ballards Island. Next one comes to Gum Creek, and finally, at River Mile 247.1, is the Dam. The Lock is another 2.5 miles downriver. Vessels heading downstream must use the Marseilles Canal, which is on the left descending side of the river below the Dam. The area between the Dam and Dresden Island is known as the Marseilles Pool. The Corps regulates its depth by opening and closing eight large gates, called fainter gates, at the Dam: higher openings correspond to a reduction in water level, and vice versa. The Dam's total opening is expressed in gate-feet, which is calculated by adding together the clearance between the bottom of each of the eight gates and the riverbed. The town of Marseilles is on the right descending bank of the river.

         On April 16, 2013, in the evening, the Dale Heller began heading downriver from Channahon with a 14-barge tow. The weather forecast indicated that periods of heavy rainfall were expected in LaSalle County, where Marseilles is located. A hydrograph sent to Ingram's shoreside personnel, as well as to the Captain of the Dale Heller, Charles White, showed that the river was expected to rise on April 17 to a crest of 11.3 feet, well below flood level, and then recede. On the morning of April 17, Captain White had the Dale Heller hold up at Ballards Island, in the hope that conditions would improve before he had to navigate past the Dam.

         At that point, another actor entered the picture: the M/V Loyd Murphy, under the command of Captain Anthony Ice. The Loyd Murphy had just traversed northbound through the Marseilles Canal and was heading upriver. Because of the severe weather conditions, Captain Ice radioed Captain White and asked if he could tie up at Ballards Island alongside the Dale Heller. The two agreed that this made sense, and so the Loyd Murphy (with its tow of 15 barges) shoved in with the Dale Heller. The barges were lashed together with various head and stern lines. The resulting combination was huge: 29 barges, six across and five long, which measured 210 feet wide and 1, 000 feet long.

         Weather conditions, and thus river conditions, continued to deteriorate overnight. Around 10:00 p.m. the North Central River Forecast Center (a branch of the National Weather Service), which had been issuing increasingly gloomy forecasts, for the first time predicated that the river would reach flood stage at Marseilles. By the morning of April 18, Captains White and Ice were having trouble holding their position at Ballards Island, even though both towboats were using most of their power to stay in place. "Drift" (that is, floating debris of all sizes) was becoming a serious problem-one that potentially could take out a propeller, stop the engines of the tow-boat, and set the entire flotilla loose in the fast water. The forecast had worsened from moderate flooding to just below major flooding. The captains decided to try to reinforce their mooring by strengthening the ties linking the barges and by tying the combined tow to some trees on the island. Later that day, however, the strength of the current ripped the trees out of the ground and the tow slipped a short distance downriver. The captains also called for and received assistance from several other boats, including the Nancy S. and the M/V City of Ottawa.

          With conditions so bad, the River Industry Action Committee and the Illinois River Carriers Association (IRCA) scheduled an emergency conference call to discuss the rapidly rising Illinois and Mississippi River levels and to come up with a plan for, among others, the Dale Heller. The call took place at 2:00 p.m. on April 18; representatives from Ingram, the Corps, and the Coast Guard, among others, participated. Given the problems that Captains White and Ice were having staying in place at Ballards Island, the group decided that the best option was for the Dam's lockmaster, Corpsman Larry Rodriguez, to lower the fainter gates so that each of the eight gates would leave a clearance of two feet between the river bottom and the bottom of the gate-in other words, 16 gate-feet-for a time just long enough to permit the Dale Heller safely to enter the Marseilles Canal. (There was some dispute in the district court over the question whether Rodriguez promised to lower the gates by 16 feet or to 16 feet, but the district court resolved this in favor of the latter, and the Flood Claimants do not contest that here.) Lowering the gates would have several effects: it would reduce the outdraft (that is, the cross-current pulling water toward the Dam) enough to permit safe passage; but at the same time, because the lower a setting is, the more water accumulates in the Marseilles Pool, the risk of flooding in the town would increase. At the time of the IRCA decision, the gate settings were quite high- 70 feet-and so the Corps's commitment to lower them to 16 feet represented a significant undertaking.

         Another aspect of the IRCA plan was that several vessels, including the Loyd Murphy, the City of Ottawa, and the M/V Creve Coeur, would help the Dale Heller flotilla hug the left descending bank of the river and guide it into the Marseilles Canal. Shortly after the IRCA call ended, the captains of several of the affected vessels, including Captain White, met aboard the City of Ottawa to review their various roles in the maneuvers. By this time it was clear that they were facing record-breaking high waters. Captain White continued to believe, however, that if Lockmaster Rodriguez played his part and lowered the gates to 16 feet, he could get the tow into the canal.

         At 5:02 p.m., Captain Ice relayed that the gates were "at 76 right now, ... going down to 55." Captain White understood this to be an interim report; no one said that the plan had changed. He set out a minute later, moving slowly because that was the only way the group of 4 vessels and 14 barges could stay coordinated. At 5:15 p.m., Captain Ice radioed that it was still possible to abort the plan (or, as he later put it, they were at the "whoa or go spot"), but that he saw no reason to do so. Two minutes later, there was a garbled transmission from Captain Ice. He radioed that he was telling Rodriguez to "open up a little more" because some flooding in the town was starting to occur. Somehow the wrong words came out of his mouth. As he later explained, he inadvertently had repeated something that an observer from the Corps stationed on the Loyd Murphy, Jeff Griffin, had said. While Captain Ice did not actually make the call, Griffin did call Rodriguez to tell him to open the gates. After receiving Griffin's call, Rodriguez chucked the entire plan out the window: he stopped lowering the gates and instead raised them all the way up to 88 feet. This action intensified the cross-current elevenfold, causing the Dale Heller's tow to break up, some barges to allide with the Dam, and some to sink. A picture of the resulting mess tells the story:

         Image Omitted

          Kenneth R. Olson & Lois Wright Morton, Runaway Barges Damage Marseilles Lock and Dam during 2013 Flood on the Illinois River, 69 J. Soil & Water Conservation 104A, 105A (2014). The Dale Heller itself briefly went out of control and spun around 360 degrees, nearly capsizing. Captain White managed to recover, however, and successfully brought to safety both the Dale Heller itself and, with the help of the other tow-boats, several of the barges in the flotilla. Some time later, the town of ...

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