We are presented with the novel question of whether the immunity clause contained in § 3 of the Flood Control Act of 1928, 33 U.S.C. § 702c, 1 applies to actions for floodwater damage allegedly occasioned by the negligence of the government in the construction of a navigation aid project.
The issue is raised by way of a motion by the government for a rehearing of the court’s previous ruling, through Judge Christenberry of this district, denying a motion to dismiss. The original motion was based on three separate grounds, and was denied by Judge Christenberry as to all three. The present motion seeks a rehearing of the previous ruling only with respect to the court’s holding thаt these actions are not barred by the immunity provision of § 3 of the Act. 2
These three consolidated cases are suits for property damage and related injuries affecting the various plaintiffs *949 occasioned by the encroachment of storm-driven waters upon their properties during Hurricane “Betsy” on September 17, 1965. Complainants charge that the flooding of their homes resulted from the overflowing and breakage of the Mississippi River-Gulf Outlet, a deep-water channel running through the lower extremities of the parishes of St. Bernard and Plaquemines, Louisiana, 3 and that the breakage was due to the negligent construction of the channel by the United States Corps of Engineers. Judge Christenberry held that the Mississippi River-Gulf Outlet was not a flood control project but a navigation aid project and that § 3 did not bar suits against the government for floodwater damage resulting from the government’s negligence unconnected with flood control projects. The government admits the Outlet is a “navigation aid” and not a flood control project, but disputes the court’s interpretation of § 3.
The government purports to base its motion for rehearing solely on the recent case of Parks v. United States,
We dispense at once with the contention of counsel for plaintiff in Civil Action 15962 that this motion for rehearing is equivalent to a motion for a new trial and therefore governed by the time limits of Rule 59(b), F.R.Civ.P. The motion for new trial is, more often than not, an anticlimactic appearance before the trial court prior to the instigation of the appellate processes. Timе is then of the essence, for the protection of the rights of other parties. But a motion addressed to the trial court for a reconsideration of an interlocutory order is proper at any time prior to the final determination of the merits.
Although the considerations for the granting of a motion for rehearing may be different from those pertaining to a decision on the merits of the matter once it has been reheard, the prime consideration in the granting of the rehearing is always a strong possibility that the original determination may have been, or may have become, incorrect. Here, the government’s request for rehеaring is based, not on any change in the law, but on the alleged impropriety of Judge Christenberry’s original ruling. Although we might be inclined in other circumstances to grant a rehearing on a showing of the possibility of error in the original determination and the need for further argument on the merits, we see no reason to do so where we have had the opportunity for thorough consideration, with the aid of extensive memoranda and arguments of counsel, and find ourselves in accord with the determination of the merits of the original motion.
In considering the merits of the government’s original motion to dismiss, we are not hampered by the apprehension that we are “bound” by Judge Christen-berry’s determination. As a matter of deference and respect, we would seriously hesitate to overturn any ruling of our respected contemporary. Moreover, in view of the recent general reallotment of cases in this district, we deem it necessary to carefully consider requests for the rehearing of any matter previously passed on by another judge of this district prior to the general reallotment; to refer the case back to the original judge in each and every instance in which a rehearing of an interlocutory decision is requested, as suggested by the Third Circuit in United States v. Wheeler,
The situation prevailing in this district due to the general reallotment may well have an influence on the exercise of “the sound discretion” of each judge, but the usual factors must still play the major рart in the decision. Certainly, a single judge is not prevented by “the law of the case” from overruling his own interlocutory decisions if he later finds them to have been incorrect. See Jaros v. State Farm Mutual Automobile Insurance Co.,
Turning, then, to the merits of the government’s original motion, we find that these tort actions are maintainable against the government under the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and that § 3 of the *951 Flood Control Aсt of 1928, 33 U.S.C. § 702c, does not necessarily override the Federal Tort Claims Act’s waiver of immunity in the particular circumstances of this case. The extent of our holding is only to deny the government’s motion to dismiss on the basis of § 3; we refrain from offering any impression as to the merits of the plaintiffs’ actions.
Contrary to the usually narrow approach to statutory waivers of the sovereign immunity, see United States v. M/V Pitcairn,
National Manufacturing Co. v. United States,
Notwithstanding the validity of such general statements, we think a great deal depends upon the extent of the policy in question, and its reasonableness. Section 3 does represent a reasonable public policy determination to secure the government from liability for floodwater damage connected with floоd control projects; but we hold that it should not be interpreted as a wholesale immunization from all liability for floodwater damage unconnected with flood control projects, and that insofar as § 3 is to be interpreted, it stands on a less crucial basis and is superseded by the general waiver of immunity of the Federal Tort Claims Act.
The National Manufacturing Company case held the government immune from liability for floodwater damage caused by acts unrelated to the government’s flood control works. Insofar as this holding was grounded on the simple reference to § 3, we respectfully differ here with the 8th Circuit’s opinion. However, the decision was based on several equally imрortant grounds in addi *952 tion to the § 3 reliance. 6 Moreover, it is significant that the flood involved in National Manufacturing Company occurred on the Kansas River, a natural waterway traditionally subject to flooding and upon which the national government had engaged in an extensive program of flood control. It can at least be said that in the National Manufacturing Company case, in contrast to the facts of this case, a natural river and a federal flood control program were involved.
Also significant is much of the language used by the court, in clarification of its actual holding with respect to § 3. Despite the express opinion of the court that § 3 was meant to “safeguarded] the United States against liability of any kind for damage from or by floods or flood waters in the broadest and most emphatic language,”
“The cost of the flood control works itself would inevitably be very great and Congress plainly manifested its will that those costs should not have the flood damages that will inevitably recur added to them. Undoubtedly floods which have traditionally been deemed ‘Acts of God’ wreak the greatest property destruction of all natural catastrophies and where floods occur after flood control work has been done and relied on the damages are vastly increased. But there is no question of the power and right of Congress to keep the' government entirely free from liability when floods occur, notwithstanding the great government works undertaken to minimize them.”210 F.2d at 270 . (Emphasis supplied.)
******
“So that uniformly and throughout the country at any place where there is damage ‘from’ or ‘by’ a flood or flood waters in spite of and notwithstanding federal flood control works no liability of any kind may attach to or rest upon the United States therefor.”210 F.2d at 271 . (Emphasis supplied.)
One could not wish for a more lucid statement of the rationale of the § 3 immunity: -that an immunity from liability for floodwater damage arising
in connection with flood control works
was the condition upon which the government decided to enter into the area of nationwide flood control programs. ' But there is no reasonable basis to suppose that the government entered into flood control works
in exchange for
a complete immunity from liability for the nеgligent and wrongful acts of its employees
unconnected
with flood control projects. It has been held that § 3 immunizes the government from liability for floodwater damage in areas not yet reached by federal flood control works, cf. Atkinson Co. v. Merritt, Chapman & Scott Corp.,
Although there have been at least a dozen decisions bearing on § 3, most of
*953
which have relied on National Manufacturing Co. v. United States in finding § 3 unaffected by the Federal Tort Claims Act, only the
National Manufacturing Company
case itself dealt with floodwater damage allegedly resulting from government negligence distinct from governmеnt flood control operations and found the government immune.
7
Statements of the rationale of § 3 similar to those quoted from the
National Manufacturing Company
opinion appear in many of the cases. In B. Amusement Company v. United States,
“The United States has a constitutional right, even a duty, to improve navigation and protect against floods, * * *. To say that, if it does enter into plans of improvement, it will stand liable for damage regardless of negligence would be an absurd rule, and one contrary to the expressed will of Congress embodied in [§ 3]. * * * We must conclude, on the basis of all the facts, that the United States is not equitably responsible for the plaintiffs’ damages, since it is in no way at fault.”180 F.Supp. at 390-391 . (Emphasis supplied.)
In Valley Cattle Co. v. United States,
“The purpose of [§ 3] was ‘to prevent the Government from being held liable for the staggering amount of damage caused by natural floods, merely because the Government had embarked upon a vast program of flood control in an effort to alleviate the effect of the floods. Because floods could not be eliminated in a single year, flood damage was bound to recur, and Congress did not want to burden its efforts to lessen the total effeсt of the floods with the cost of the damage that was certain to result in spite of its efforts. * * * ’ Atkinson Co. v. Merritt, Chapman & Scott Corp.,126 F.Supp. 406 , 408-409, N.D.Cal.1954.”258 F.Supp. 16 .
Our investigation of the legislative history of § 3 reveals it to be scant, but the very scarcity of legislative comment emphasizes the propriety of a reasonable and consistent interpretation. What few references there are to the provision strengthen this approach. 8
Against the weight of a rational and consistent interpretation of § 3, the government argues that the wording of the section should be viewed out of the context of the 1928 Flood Control Act of which it is a part. To a certain extent this is a valid apрroach. Cf. Peerless Serum Co. v. United States,
Our decision is not predicated solely on our construction of § 3. We are equally prompted by our inability to accept this immunity provision, reasonably related to government involvement in flood control programs, as an absolute insulation from liability for all wrongful acts in other situations, contrary to the express policy of the Federal Tort Claims Act that the government should be held liable for the wrongful acts of its employees in the same respect as private persons. Insofar as provisions for federal nonliability for floodwаter damage under § 3 is totally dissociated from federal involvement in flood control programs, it should be held superseded by the general liberal waiver of immunity of the Federal Tort Claims Act. To the same extent, the line of cases prior to the 1928 Act which developed the rule of absolute nonliability of the federal government for flood damage, we now hold superseded by the FTCA.
The line of cases
11
to which we refer stems from Bedford v. United States,
“[The plaintiffs assert] a right in a riparian proprietor to the unrestrained operation of natural causes, and that works of the government which resist or disturb those causes, if injury result to, riparian owners, have the effect of taking private property for public uses within the meaning of the 5th Amendment * * *. The consequences of the contention immediately challenge its soundness. What is its limit? Is only the government so restrained? Why not as well riparian proprietors, are they also forbidden to resist natural causes, whatever devastation by floods or erosion threaten their property? * * * And if the government is responsible to one landowner below the works, why not to all landowners? * * * Asserting the rights of riparian property it might make that property valueless. Conceding the power of the government over navigable rivers, it would make that power impossible of exercise, or would prevent its exercise by the drеad of an immeasurable responsibility.”192 U.S. 223 -224,24 S.Ct. 940 .
There may be a valid governmental interest in avoiding liability for floods in connection with navigation improvement projects; the great public interest served by these projects might be inhibited by a willingness of courts to permit what could well become an avalanche of suits in such cases. But we do not think that such an interest, absent its expression in positive law, warrants the complete andi absolute prohibition of all suits against the government for floodwater damage in the face of the more liberal policy of the Federal Tort Claims Act. We think the public interest in navigation improvements and in the аvoidance to that end of burdensome litigation is better served, consistent with the policy considerations ,of the FTCA, by an equitable approach which might severely inhibit suits for flood damage, but at the same time leave certain avenues open for action in cases of flagrant wrongdoing. The cases which in the past have forestalled suits against the government for flood damage apart from § 3 considerations are expressions of a valid concern over the prohibitive effect a permissive attitude might have on the nation’s continuing navigation improvement works. But the leading cases have denied recovery on the merits, not by way of the abrupt dismissal the government seeks here. We find no express determination in the cases prior to the introduction of § 3 that any and all possible claims based on wrongdoing imputable to the government are prohibited on the sole circumstance that floodwater damage is involved. Whatever expression there may have been to that effect we now find modified by the FTCA.
We might accept § 3 of the 1928 Act, were we called upon to do so, as insulating the government from all liability for floodwater damage which might in any real way be connected with possible negligence in flood control operations. Navigation aid works, and perhaps even operations such as weather forecasting (Cf. National Maufacturing Co. v. United States, supra), resulting in flood damage in conjunction with the flooding of natural rivers subject to present or potential flood control works, might be insulated with a view to pro *956 tecting the government from even the harassment of lawsuits in connection with the federal flood control program which might otherwise tend to multiply in the face of a less strict interpretation. But in the case of a project such as this River-Gulf Outlet, totally unrelated to any natural waterway or the national flood control program, we think that the possibility of reсovery against the government for any and all degrees of negligence and wrongful actions of its employees under the Federal Tort Claims Act should not be abruptly cut off by outright dismissal merely because the injuries involved were the result of an encroachment of flood waters.
We hasten to indicate a severe limitation on the possibilities of recovery by these plaintiffs, however. The burden of proof which the plaintiffs carry here will be unusually onerous. We find the limitation, not in an uncomprisingly strict interpretation of § 3, but in the more flexible concepts of ordinary negligence, applicable to private persons as well as the government under the FTCA. The principle in determining the negligent character of the acts of defendants, particularly applicable in cases involving such necessary public works as this navigation aid project, is merely that
“Against [the] probability, and gravity, of the risk, must be balanced in every case the utility of the type of conduct in question.” Prosser on Torts, 3rd Edition, p. 151. (Emphasis supplied.)
The determination of whether or not the government has acted “reasonably” in the circumstances of this case will depend as much upon the public need, or “utility,” of this navigation channel and the very high burden and the difficulties involved in totally protecting against dangers of its flooding, as it will upon the factors on the other balance of the scale: the risk of flooding, and the ease with which there might have been greater precautions than actually were taken. “Chief among the factors [in any case] is the social value of the interest which the actor is seeking to advance,” Prosser, supra, p. 151. 12 In this case, the government was undeniably engaged in operations of very great social value. The plaintiffs will have a correspondingly greater burden to point to other factors which might outweigh this important consideration. Gross failure on the government’s part to take the simplest precautionary and safety measures would be decisive. We are not prepared tо elaborate further on the possible development of these cases along these lines. Suffice it to say that, although neither § 3 of the 1928 Flood Control Act nor the general seemingly inflexible statements in the cases of an earlier era, may totally insulate the government from liability for any and all wrongdoing in the construction of this channel, the United States is not left without any defenses; the government may be liable for negligence under the Federal Tort Claims Act, but proof of “negligence” in the circumstances of these cases and others like them will not prove an easy matter.
Accordingly, the motion of the United States for a rehearing on their previous motions to dismiss in these three actions is hereby denied and rejected.
Notes
. Section 3 of the Act reads in pertinent part as follows:
“No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place: Provided, however, That if in carrying out the purposes of this Act it shall be found that upon any stretch of the banks of the Mississippi River it is impracticable to construct levees, either because such construction is not economically justified or because such construction would unreasonably restrict the flood channel, and lands in such stretch of the river are subjected to overflow and damage which are not now overflowed or damaged by reason of the construction of levees on the opposite banks of the river, it shall be the duty of the Secretary of War and the Chief of Engineers to institute proceedings on behalf of the United States Government to acquire either the absolute ownership of the lands so subjected to overflow and damage or floodage rights over such lands.” 45 Stat. 534, 535-536.
. The two other grounds for the government’s original motion were (1) that the plaintiffs’ claims had prescribed ■ and (2) that the plaintiffs’ claims of negligence related to the performance by government employees of functions within the purview of the exclusionary section 421(a) of the FTCA, 28 U.S.C. § 2680(a). With respect to the latter ground, Judge Christenberry viewed the thrust of the government’s motion to be the contention that the functions of the government employees engaged in construction of the Outlet were “discretionary” and held that that question was not ripe for consideration upon a motion to dismiss in view of the recent trend, under Indian Towing Co. v. United States,
. The “Outlet” was partially completed for use in July of 1963, at a total construction cost as of January 30, 1967, of $60,-182,400 excluding maintenance costs. The channel is approximately 66 miles long, including approximately 46 miles of “land cut,” extending from the northern end of the Chandelier Island group to an intersection with the Industrial Canal at Michoud, Louisiana. The Outlet enables ships from ports east of the Mississippi River to head north for New Orleans at Breton Sound, many miles east of the river mouth, at a substantial saving of distance traveled. Presently, ships passing from Breton Sound through the Outlet into the Industrial Canal and thence to the river, must sacrifice some time because of inadequate lock facilities and because of this only two or three ships a day make use of the route; but when construction is complete, traffic is expected to greatly increase.
. Early lower court decisions, including those of the Fifth Circuit, almost unanimously took a narrow view of the FTCA waiver, see
. Thus, we do not deem controlling the Supreme Court’s observation in
Yellow Gab
that the moving force behind the Congressional actiоn on the Bill was “the benefits to be derived from relieving Congress of the pressure of private claims,”
. The majority opinion was grounded as well on the express holding that the negligence alleged came within the еxceptions to the waiver of the FTCA contained in 28 U.S.C. § 2680(a) and § 2680 (h). In addition, the concurring opinion, in- which
two
of the three judges joined, found an equally important consideration to be that the plaintiffs’ claims, which were based solely on the alleged failure of the government’s weather forecasters to properly warn the public of the impending flood, were forestalled by “the equally absolute policy which has always existed in the common law, that the dissemination or nondissemination of public information, not of a personal character,
is without any basis of a tort
in respect to its accuracy.” (Emphasis added.)
. Moreover, several cases have actually avoided the application of the immunity in situations involving flooding, where government negligence was an active force contributing to the flood, on the theory that the inundation of water in each case was not a “flood” at all. See Valley Cattle Co. v. United States,
. At no time during the long history of the Bill S. 3740 and its contemporaries was the question of immunity raised until shortly before the final version was resolved and enacted into law. The immunity proviso was not contained in any form in the Bill as it was first introduced or while it made its first trip through both houses of Congress. The provision was part of an amendment offered in connection with a Federal-State issue late in the proceedings. The only cоmment concerning the provision which our search has disclosed was made by a member on the floor of the House to the effect that in engaging itself in flood control works, the government should not lay itself open to suits for flood damage. See 69 Cong. Rec. 7022.
. These decisions held § 3 applicable, not only to the Mississippi River and its *954 tributaries (the subjects of the 1928 Act), but to all natural waterways across the country.
. Here again we differ with the 8th Circuit’s opinion in National Mfg. Co. v. United States,
. See the cases cited in Atchley v. Tennessee Valley Authority,
. Cf. United States v. Carroll Towing Co.,