Case Information

*1 Before W OOD , Chief Judge , B AUER S YKES , Circuit Judges .

W OOD Chief Judge

. At 5:33 evening April 2013, barge tow pushed M/V A. sucked into powerful cross current broke up. Some barges crashed (or allided, mariners say) Dam; sank; some saved. accident happened during record breaking rains high water, *2 a day later, the nearby town of Marseilles experienced signif ‐ icant flooding. This lawsuit, brought by group who call themselves the Flood Claimants, represents effort fix blame for the allision and recover for their flood damage. The Flood Claimants stymied, however, when dis trict ruled that United States, which manages Dam through its Army Corps of Engineers, immune from suit for its role allision, and that Corps solely responsible accident. believe Ingram Barge, company owns operates , shares of blame because of its failure follow certain inland navigation rules its general negli gence. We conclude, however, facts found dis trict clearly erroneous, those facts support court’s assignment of sole responsibility Corps.

I

We need desire replicate court’s painstaking, minute minute, account events leading up allision immediate aftermath. We commend court’s opinion those who are interested details. See In Matter Complaint Ingram Barge Co. F. Supp. 3d (N.D. Ill. 2016). We offer here only highlights pertain arguments appeal.

Geographically, we are talking about stretch Illinois River runs from upriver town Channahon, Illinois, down Lock Dam, just downriver town Marseilles. Illinois River tributary Mississippi River, joins Grafton, Illinois, short distance northwest St. Louis, Missouri.

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

On April 16, 2013, evening, Dale Heller began heading downriver Channahon barge tow. weather forecast indicated periods heavy rainfall expected LaSalle County, where located. A hydrograph sent Ingram’s shoreside personnel, well as Captain Dale Heller , Charles White, showed river expected rise April crest 11.3 feet, well below flood level, then recede. On morning April had hold up Ballards Island, hope conditions improve before navigate past Dam.

At point, another actor entered picture: M/V Loyd Murphy under command Anthony Ice. Loyd Murphy just traversed northbound through *4 Canal and heading upriver. Because of se ‐ vere weather conditions, Ice radioed White and asked if could tie up Ballards Island alongside Dale Heller . The two agreed made sense, and so Loyd Murphy (with tow of barges) shoved with . The barges were lashed together various head and stern lines. The resulting combination huge: barges, six across and five long, which measured feet wide and 1,000 feet long.

Weather conditions, and thus river conditions, continued deteriorate overnight. Around 10:00 p.m. North Central River Forecast Center (a branch National Weather Ser ‐ vice), issuing increasingly gloomy forecasts, for first predicated river reach flood stage Marseilles. By morning April Captains and Ice having trouble holding their position Ballards Island, even though both towboats using most their power stay place. “Drift” (that is, floating debris sizes) becoming serious problem—one poten ‐ tially could take out propeller, stop engines tow ‐ boat, set entire flotilla loose fast water. The fore cast worsened from moderate flooding just below ma jor flooding. captains decided try reinforce their mooring strengthening ties linking barges tying combined tow trees island. Later day, however, strength current ripped trees ground tow slipped short distance downriver. captains also called received assistance sev eral boats, including Nancy S. M/V City Ottawa .

With conditions so bad, the River Industry Action Com mittee and the Illinois River Carriers Association (IRCA) scheduled emergency conference call discuss the rapidly rising Illinois and Mississippi River levels and come up a plan for, among others, the Dale Heller . call took place 2:00 p.m. April 18; representatives Ingram, the Corps, and the Coast Guard, among others, participated. Given the problems Captains Ice having staying in place Ballards Island, the group decided the best option the Dam’s lockmaster, Corpsman Larry Rodriguez, lower the tainter gates so each of the eight gates would leave clearance of two feet between the river bottom the bottom the gate—in words, gate feet—for time just long enough permit the Dale Heller safely enter the Marseilles Canal. (There dispute in the district over the question whether Rodriguez promised lower the feet feet, but the resolved favor latter, do contest here.) Lowering would several effects: would reduce outdraft (that is, cross current pulling water toward Dam) enough permit safe passage; same time, because lower setting is, water accumulates Marseilles Pool, risk flooding town would increase. At IRCA decision, gate settings quite high— feet—and so Corps’s commitment lower them feet represented significant undertaking.

Another aspect IRCA plan several vessels, including Loyd Murphy , City Ottawa , M/V Creve Coeur help flotilla hug left descending bank river guide Canal. Shortly after IRCA call ended, captains *6 several the affected vessels, including Captain White, met aboard City Ottawa to review their various roles maneuvers. By this was clear that they were facing record breaking high waters. Captain White continued to believe, however, that if Lockmaster Rodriguez played his part lowered gates to feet, he could get tow canal.

At 5:02 p.m., Captain Ice relayed “at right now, … going down to 55.” Captain understood to an interim report; no said plan had changed. He set out minute later, moving slowly because was only way group vessels barges could stay coordinated. At 5:15 p.m., Captain Ice radioed still possible abort plan (or, he later put it, “whoa go spot”), he saw reason do so. Two minutes later, there garbled transmission from Ice. He radioed he telling Rodriguez “open up little more” because some flooding town starting occur. Somehow wrong words came out his mouth. As he later explained, he inadvertently re peated something observer Corps stationed Loyd Murphy Jeff Griffin, said. While Ice did actually make call, Griffin did call Rodriguez tell him open gates. After receiving Griffin’s call, Rodriguez chucked entire plan window: stopped lowering instead raised them way up feet. This action intensified cross current elevenfold, causing ’s tow break up, some barges allide Dam, sink. A picture resulting mess tells story: *7 Kenneth R. Olson & Lois Wright Morton, Runaway Barges Damage Marseilles Lock Dam during Illinois River J. S OIL & W ATER C ONSERVATION 104A, 105A (2014). Dale Heller itself briefly went control spun around degrees, nearly capsizing. man aged recover, however, successfully brought safety both itself and, help tow boats, several barges flotilla. Some later, town experienced severe flooding. Over two *8 16 ‐ 4264 hundred residents sustained damage their property, as did elementary school.

II

This suit began limitation action brought Ingram under U.S.C. §§ et seq. it became complex over time. At one point, it involved claims, cross claims, and counterclaims among Flood Claimants, Ingram, United States (on behalf Corps Engineers), and In land Marine Service (the owner Loyd Murphy ). United States and Corps dropped after district court ruled United States was entitled sovereign immunity under discretionary function exception Federal Tort Claims Act, U.S.C. § 2680(a). See also U.S.C. § 702c, ¶ 2. Other controversies settled, leaving for trial only Flood Claimants’ claims against Ingram.

For purposes case management, district court divided proceedings three phases: (1) liability for allision; (2) whether allision caused flooding town; (3) damages. It held ten day bench trial first question—whether anything Ingram did anything was responsible caused allision. In page opinion, concluded answer no, sole proximate cause accident negligence Lockmaster Rodriguez. It also held Ingram entitled exoneration limitation liability under U.S.C. § 30505. These findings rendered phases unnecessary, so entered final judgment Ingram’s favor.

On appeal, focus Ingram’s alleged violations three Inland Navigation rules. If even violated, argue, should applied *9 9 Pennsylvania Rule (announced in The Pennsylvania U.S. (1873)), which requires such violator show that its ac ‐ tion could contributory cause of accident. They also argue Ingram knew enough about allegedly negligent actions entitled exoneration or lim ‐ itation of liability. Although they say outset they are largely satisfied with district court’s findings of fact, they argue some are clearly erroneous, court failed apply facts properly regulations.

III

The Inland Navigation rules which Flood Claim ants rely are issued by Department of Homeland Security (where Coast Guard now lodged). See U.S.C. § 2071. The Claimants single three rules contend Ingram violated: Rule 2, Responsibility rule, C.F.R. § 83.02; Rule 5, Lookout rule, C.F.R. § 83.05; Rule 7, Risk of Collision rule, C.F.R. § 83.07. examined each rule against backdrop of its findings of fact found violation. assert committed legal error in its interpretations rules, clear error application law facts instances. Responsibility rule, reads follows:

(a) Nothing these Rules shall exonerate any vessel, or owner, master, or crew thereof, consequences any neglect comply these Rules or neglect precaution may required ordi nary practice seamen, special cir cumstances case.

(b) In construing and complying with these Rules due regard shall to dangers of navigation and collision and to special cir ‐ cumstances, including the limitations of the ves sels involved, may make departure these Rules necessary to avoid immediate danger. C.F.R. § 83.02. Claimants assert the planning

behind Dale Heller ’s ill fated effort to reach the Canal “disjointed, poorly communicated, poorly conceived.” Indeed, they accuse Ingram of behaving cavalier fashion about whole situation. They find IRCA call confused unclear, transit planning inadequate, arrangements to keep lines of communication open defective. And Captains’ meeting did nothing, their view, correct these deficiencies.

In addition these problems, argue there no process review double check plan; pilot Dale Heller Ron Shrader, objected plan; details plan were never committed writing; ever nailed down critical question how long remain feet. Taken gether, assert, these failings are so severe court’s conclusion Rule violated cannot stand.

As Ingram points out, however, calls prudent action circumstances faced vessels. Those cir cumstances, afternoon April fraught danger. combined flotilla Loyd Murphy slipping downriver despite use full horsepower available both vessels; effort secure tows Ballards Island thwarted when force *11 ‐ the current literally pulled the trees the ground; and none the options was risk free. The participants in the IRCA call considered the possibilities and opted for the best plan possible. If was work, every part the plan had to executed well as possible.

The fact the plan was in writing meant nothing. As the found, “both maritime custom and pri vate arrangement provided Ingram the right rely on the lockmaster’s representation he lower the feet allow the Dale Heller safe harbor in the Canal.” Confirmation writing made no sense any event under rapidly developing conditions mariners faced. Nor was there time for risk assessment formal than one IRCA group then captains under took—the transit commenced only three hours after IRCA call began. These all experienced people, who were well aware risks outdraft, lockmaster’s ability raise lower tainter gates, his control over entry Canal. These findings well supported record.

The also found group made adequate arrangements for communications among critical players—Captain White, captains assist vessels, lockmaster. fault White re confirming lowering with Lockmaster Rodriguez while proceeding toward mouth Canal with tow, he reason think necessary. burden Rodriguez alert others decided change gate settings, entitled rely understanding. Obviously, hindsight can *12 say additional checks might have helped. But Rule does punish failures see future. And, depending when they occurred, additional communications might have helped. At point—presumably “whoa go” moment Ice mentioned—the tow barges would unable do anything continue downriver toward Canal.

We consider question whether Inland Navigation Rule violated be fact: measures Ingram’s vessel took appropriate purposes rule? district court weighed evidence concluded failed prove violation rule. We see no clear error assessment.

Next we look Lookout rule, reads as follows:

Every vessel shall all times maintain proper look sight hearing as well as by available means appropriate prevailing circumstances conditions so make full appraisal situation risk collision. C.F.R. § 83.05. This appears be Claimants’ prin

cipal argument, least if number pages brief measure. They assert district court committed legal error finding (as characterize it) Rodriguez’s ver bal commitment lower tainter gate feet “eliminated Ingram’s obligation maintain proper look out.” If what said, we indeed concerned. But held such thing. *13 13 16 ‐ 4264 5 does not demand that a vessel have a separate per ‐ son whose sole responsibility serve as a lookout. Instead, according testimony the trial, a vessel captain can serve as the required lookout if he has a ‐ degree unobstructed view during transit. As the Flood Claimants admit, ample case law supports this proposition as well. See Marport, Inc. v. Stabbert & Associates, Inc. , F.2d (9th Cir. 1985) (discussing the “well settled” rule the helmsman may “serve as lookout from the wheelhouse a tug”). Captain was aware rule testified he nec ‐ essary unobstructed, degree view from bridge. If were enough, noted, Pilot Shrader was po ‐ sition supplement Captain White’s observations, was Ice Loyd Murphy was assisting transit operation. Claimants respond record demon ‐

strates one ’s bridge truly un ‐ obstructed degree view, because barges was push ing were covered, so water ahead tow (some 1,000 feet, appears) visible. Only person stationed front lead barge assist boats could have alerted captain moment when tow hit outdraft. Such person, argue, also seen how high after Rodriguez raised them feet; assert literally water point their height unmistakable.

Once again, Claimants’ argument fails take en tire record account. White, assisted his pilot vessels, able keep adequate lookout. And knew just where greatest risk outdraft lo cated—approximately feet dam. Outdraft, *14 ‐ 4264 he explained, ubiquitous Illinois River: is present “[n]ot only just [at] lock, every lock.” critical fact nothing do with his lookout; instead that he was proceeding understanding that outdraft would cor ‐ respond gate feet, whereas in reality moving an outdraft least times stronger, associated with gate ‐ feet. district rejected, a matter fact, Claim ‐

ants’ hypothesis proper lookout would have seen gates entirely water. Testimony rec ord indicated upriver mariners cannot see gate setting Dam, least any precision. In broad terms, mariners can tell if are wide open, largely closed. Nevertheless, after reviewing photographic evi dence, concluded position not plain. It also commented

[T]he visibility foot gate setting by 5:27PM does not tell Court that—with proper lookout—a prudent mariner stopped transit minutes before, having de cided lockhouse could get back foot gate setting tow avoid powerful outdraft. These findings are supported record are tainted legal error. We thus conclude court’s analysis Inland Navigation Rule sound.

Finally, we consider Risk Collision rule, pertinent part says: (a) Every vessel shall use available means appropriate prevailing circumstances *15 15 conditions to determine if risk collision exists. If there is doubt such risk shall be deemed to exist.

* * *

(c) Assumptions shall not made ba sis scanty information, especially scanty ra dar information. C.F.R. § 83.07. Claimants’ arguments with respect to Rule largely

repeat points they make with respect to Rules 5. Once again, they contend that Captain White Pilot Shrader violated rule (this Rule 7) failing to speak up when they realized that transit was going planned. captain should have realized, argue, plan lower feet been scrapped least run into trouble. They criticize Captain White thinking, 5:02 p.m., Captain Ice’s statement “going down 55” was progress report, a statement gate feet longer goal. Worse, 5:16 p.m. when Captain Ice radioed “telling [the lockmaster] open up little bit more gate because they’re starting flood up them houses already,” White responded, “Okay.” At point, Claimants insist, should have checked back with Lockmaster Rodriguez find what happening. Rule imposes duty take steps determine if risk collision exists. One easy such step, Claimants argue, check Lockmaster. conclude his failure do so based nothing than an assumption, such action forbidden 7. *16 ‐ 4264

The point to three transmissions in support this argument: one at 4:23 p.m., one at 5:02 p.m., one at 5:17 p.m. first these, from Captain Slack City Ottawa informed Captain White “it takes them minutes to shut gates minutes to open them. So, they, they’re going to shut four on the, uh, left side that’s all.” Pilot Shrader heard this understood it to be a statement about it would take to move tainter to gate ‐ feet. In fact, this wrong: move rate foot per minute, there is no evidence river mar iners knew this. Under circumstances, court found nothing unreasonable about ’s lack a reaction this transmission.

We already have discussed 5:02 p.m. transmission, known parties here as “76 ‐ 55” message. Although a stranger situation might see this as ambiguous, Captain White no reason think IRCA plan, confirmed captains’ meeting, place. A change from foot gate foot gate would enormous, reason think such significant change be made without anyone’s informing him. Tellingly, Captain White uncomfortable gate setting only feet, first prompted him hold Ballards Island April 17. found his reliance earlier plan reasonable. That finding is clearly erroneous.

Finally, while 5:17 p.m. “open gate” transmission Ice Captain certainly troublesome, discussed detail earlier opinion. Ice explained way:

Prior to transmission—that actually mix up my words—Captain Charlie [White] had said to me, I’m starting to get aground I’m starting to suck down, as he’s trying to come ahead it. And I getting ready tell him, I’m going pull your stern out, just as I grabbed radio, Jeff [Griffin] [a crane opera ‐ tor for Corps who working as ob ‐ server] said, hey, they’re flooding houses; I’m telling them open up dam. And I just ‐ stantly repeated what said rather than finish ‐ ing my transmission. district credited explanation. Importantly, it

also found neither towboat operator such as Ice, nor crane operator Corps, authority instruct Lockmaster take actions. Lockmaster exclusive authority duty operate manage all traffic through canal. C.F.R. § 207.300(a). Just as Rodriguez’s regulatory authority supports district court’s conclusion his actions sole proximate cause allusion, it suggests did violate continuing after “open gate” trans ‐ mission. He reasonably—although erroneously, turned out—relied Rodriguez prudently exercise his sole au ‐ thority over passage through canal. In addi tion, court’s review evidence, including photo graphs, convinced there flooding point observed.

Taking facts account, con cluded also failed establish violation *18 of Inland Navigation Rule 7. We find no clear error in fac tual finding that Ingram, vessel , not at fault for failing question, mid transit, whether every one still following IRCA plan.

The Flood Claimants’ failure demonstrate a violation of of Inland Navigation means Pennsylvania rule does not come play. That rule, raised for first time in their post argument briefing at court, addresses finding of fault when a regulatory violation has been shown:

But when, this case, a ship a collision is actual violation statutory rule intended prevent collisions, it is no than reasonable presumption fault, if not sole cause, least contributory cause disaster. In such case burden rests upon ship showing not merely her fault might not have causes, it probably not, it could not been. Pennsylvania U.S. (1873). This shifts burden proof claimant shipowner, requires shipowner rule possibility regulatory violation contributed accident. But onerous burden does arise unless predicate violations are proven, case. Pennsylvania rule thus help Claimants.

Our conclusions respect Inland Navigation Rules make unnecessary us address Ingram’s entitlement exoneration limitation liability under *19 Limitation Act, U.S.C. § et seq . We thus have comment this part district court’s opinion.

IV flooding struck April

terrible. It caused millions dollars damage individual property owners, City itself, an elementary school. Whether barge accident we have discussing caused or flooding issue district did reach, because found accident itself solely caused Army Corps Engineers’ Lockmaster Rodriguez. Because discretionary function exception Federal Tort Claims Act, Corps cannot sued Rodriguez’s actions, however negligent inexplicable may been. court’s finding Rodriguez solely responsible is, like findings fact case, supported record clearly erroneous. We thus A FFIRM judgment court.