Larry Alexander, et al. v. Ingram Barge Company

Seventh Circuit Court of Appeals Courthouse - Chicago, Illinois

Case Number: 16-4264

Judge: Wood

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Ken Brennan and Tyler Schneider

Defendant's Attorney: United States Attorney's Office

Description: 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
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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.
I
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. Ill. 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.
No. 16‐4264 3
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 tainter 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
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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 towboat,
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.
No. 16‐4264 5
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 tainter 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 gatefeet—
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
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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:
No. 16‐4264 7
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 towboats,
several of the barges in the flotilla. Some time later, the
town of Marseilles experienced severe flooding. Over two
8 No. 16‐4264
hundred residents sustained damage to their property, as did
an elementary school.
II
This suit began as a limitation action brought by Ingram
under 46 U.S.C. §§ 30501, et seq., but it became more complex
over time. At one point, it involved claims, cross‐claims, and
counterclaims among the Flood Claimants, Ingram, the
United States (on behalf of the Corps of Engineers), and Inland
Marine Service (the owner of the Loyd Murphy). The
United States and the Corps dropped out after the district
court ruled that the United States was entitled to sovereign
immunity under the discretionary function exception to the
Federal Tort Claims Act, 28 U.S.C. § 2680(a). See also 33 U.S.C.
§ 702c, ¶ 2. Other controversies were settled, leaving for trial
only the Flood Claimants’ claims against Ingram.
For purposes of case management, the district court
divided the proceedings into three phases: (1) liability for the
allision; (2) whether the allision caused the flooding in the
town; and (3) damages. It held a ten‐day bench trial on the
first question—whether anything Ingram did or anything for
which it was responsible caused the allision. In a 127‐page
opinion, it concluded that the answer was no, and that the sole
proximate cause of the accident was the negligence of
Lockmaster Rodriguez. It also held that Ingram was entitled
to exoneration and limitation of liability under 46 U.S.C. §
30505. These findings rendered phases 2 and 3 unnecessary,
and so the court entered final judgment in Ingram’s favor.
On appeal, the Flood Claimants focus on Ingram’s alleged
violations of three Inland Navigation rules. If even one was
violated, they argue, the district court should have applied
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the Pennsylvania Rule (announced in The Pennsylvania, 86 U.S.
125 (1873)), which requires such a violator to show that its action
could not have been a contributory cause of the accident.
They also argue that Ingram knew enough about the allegedly
negligent actions that it was not entitled to exoneration or limitation
of liability. Although they say at the outset that they
are largely satisfied with the district court’s findings of fact,
they argue that some are clearly erroneous, and that the court
failed to apply the facts properly to the regulations.
III
The Inland Navigation rules on which the Flood Claimants
rely are issued by the Department of Homeland Security
(where the Coast Guard is now lodged). See 33 U.S.C. § 2071.
The Claimants single out three rules that they contend Ingram
violated: Rule 2, the Responsibility rule, 33 C.F.R. § 83.02; Rule
5, the Lookout rule, 33 C.F.R. § 83.05; and Rule 7, the Risk of
Collision rule, 33 C.F.R. § 83.07. The district court examined
each rule against the backdrop of its findings of fact and
found no violation. The Flood Claimants assert that the court
committed legal error in some of its interpretations of the
rules, and clear error in its application of the law to the facts
in other instances.
Rule 2, the Responsibility rule, reads as follows:
(a) Nothing in these Rules shall exonerate
any vessel, or the owner, master, or crew
thereof, from the consequences of any neglect to
comply with these Rules or of the neglect of any
precaution which may be required by the ordinary
practice of seamen, or by the special circumstances
of the case.
10 No. 16‐4264
(b) In construing and complying with these
Rules due regard shall be had to all dangers of
navigation and collision and to any special circumstances,
including the limitations of the vessels
involved, which may make a departure
from these Rules necessary to avoid immediate
danger.
33 C.F.R. § 83.02. The Claimants assert that the planning
behind the Dale Heller’s ill‐fated effort to reach the Marseilles
Canal was “disjointed, poorly communicated, and poorly
conceived.” Indeed, they accuse Ingram of behaving in a
cavalier fashion about the whole situation. They find the
IRCA call confused and unclear, the transit planning
inadequate, and the arrangements to keep lines of
communication open defective. And the Captains’ meeting
did nothing, in their view, to correct these deficiencies.
In addition to these problems, the Flood Claimants argue
that there was no process to review or double‐check the plan;
that the pilot of the Dale Heller, Ron Shrader, objected to the
plan; that the details of the plan were never committed to
writing; and that no one ever nailed down the critical question
of how long the gates were to remain at 16 feet. Taken together,
they assert, these failings are so severe that the district
court’s conclusion that Rule 2 was not violated cannot stand.
As Ingram points out, however, Rule 2 calls for prudent
action in the circumstances faced by the vessels. Those circumstances,
as of the afternoon of April 18, were fraught with
danger. The combined flotilla of the Dale Heller and the Loyd
Murphy was slipping downriver despite the use of the full
horsepower available to both vessels; the effort to secure the
tows to Ballards Island had been thwarted when the force of
No. 16‐4264 11
the current literally pulled the trees out of the ground; and
none of the options was risk‐free. The participants in the IRCA
call considered the possibilities and opted for the best plan
possible. If it was to work, every part of the plan had to be
executed as well as possible.
The fact that the plan was not in writing meant nothing.
As the district court found, “both maritime custom and private
arrangement provided Ingram the right to rely on the
lockmaster’s representation that he would lower the gates to
16 feet to allow the Dale Heller safe harbor in the Marseilles
Canal.” Confirmation in writing made no sense in any event
under the rapidly developing conditions the mariners faced.
Nor was there time for a risk assessment any more formal
than the one the IRCA group and then the captains undertook—
the transit commenced only three hours after the IRCA
call began. These were all experienced people, who were well
aware of the risks from the outdraft, the lockmaster’s ability
to raise and lower the tainter gates, and his control over the
entry to the Canal. These findings were all well supported in
the record.
The court also found that the group made adequate
arrangements for communications among the critical
players—Captain White, the captains of the assist vessels, and
the lockmaster. The Flood Claimants fault Captain White for
not re‐confirming the lowering of the gates with Lockmaster
Rodriguez while the Dale Heller was proceeding toward the
mouth of the Canal with its tow, but at the time he had no
reason to think this was necessary. The burden was on
Rodriguez to alert the others that he had decided to change
the gate settings, and Captain White was entitled to rely on
that understanding. Obviously, with 20‐20 hindsight one can
12 No. 16‐4264
say that additional checks might have helped. But Rule 2 does
not punish failures to see into the future. And, depending on
when they occurred, additional communications might not
have helped. At some point—presumably the “whoa or go”
moment Captain Ice mentioned—the Dale Heller and its tow
of 14 barges would have been unable to do anything but
continue downriver toward the Marseilles Canal.
We consider the question whether Inland Navigation Rule
2 was violated to be one of fact: were the measures Ingram’s
vessel took appropriate for purposes of this rule? The district
court weighed the evidence and concluded that the Claimants
failed to prove a violation of that rule. We see no clear error in
that assessment.
Next we look at Rule 5, the Lookout rule, which reads as
follows:
Every vessel shall at all times maintain a proper
look‐out by sight and hearing as well as by all
available means appropriate in the prevailing
circumstances and conditions so as to make a
full appraisal of the situation and of the risk of
collision.
33 C.F.R. § 83.05. This appears to be the Flood Claimants’ principal
argument, at least if number of pages in the brief is any
measure. They assert that the district court committed legal
error by finding (as they characterize it) that Rodriguez’s verbal
commitment to lower the tainter gates to 16 gate‐feet
“eliminated Ingram’s obligation to maintain a proper lookout.”
If that were what the district court had said, we would
indeed be concerned. But the court held no such thing.
No. 16‐4264 13
Rule 5 does not demand that a vessel have a separate person
whose sole responsibility is to serve as a lookout. Instead,
according to testimony at the trial, a vessel captain can serve
as the required lookout if he has a 360‐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., 771 F.2d 1216, 1218 (9th Cir. 1985)
(discussing the “well‐settled” rule that the helmsman may
“serve as lookout from the wheelhouse of a tug”). Captain
White was aware of this rule and testified that he had the necessary
unobstructed, 360‐degree view from the bridge. If that
were not enough, the court noted, Pilot Shrader was in a position
to supplement Captain White’s observations, as was
Captain Ice in the Loyd Murphy, which was assisting in the
transit operation.
The Flood Claimants respond that the record demonstrates
that no one on the Dale Heller’s bridge had a truly unobstructed
360‐degree view, because the barges it was pushing
were covered, and so the water ahead of the tow (some
1,000 feet, it appears) was not visible. Only a person stationed
at the front of the lead barge or on one of the assist boats could
have alerted the captain to the moment when the tow hit the
outdraft. Such a person, they argue, would also have seen
how high the gates were after Rodriguez raised them to 88
feet; the Claimants assert that the gates were literally out of
the water at that point and their height was unmistakable.
Once again, the Claimants’ argument fails to take the entire
record into account. Captain White, assisted by his pilot
and the other vessels, was able to keep an adequate lookout.
And he knew just where the greatest risk of outdraft was located—
approximately 200 to 300 feet from the dam. Outdraft,
14 No. 16‐4264
he explained, is ubiquitous on the Illinois River: it is present
“[n]ot only just [at] this lock, but every lock.” The critical fact
had nothing to do with his lookout; it was instead that he was
proceeding on the understanding that the outdraft would correspond
to 16 gate‐feet, whereas in reality he was moving into
an outdraft at least 11 times stronger, associated with 88 gatefeet.
The district court rejected, as a matter of fact, the Claimants’
hypothesis that a proper lookout would have seen that
the gates were entirely out of the water. Testimony in the record
indicated that upriver mariners cannot see the gate setting
at the Marseilles Dam, at least with any precision. In broad
terms, mariners can tell if the gates are wide open, or largely
closed. Nevertheless, after reviewing the photographic evidence,
the court concluded that the position of the gates was
not plain. It also commented that
[T]he visibility of an 88‐foot gate setting by
5:27PM does not tell the Court that—with a
proper lookout—a prudent mariner would have
stopped the transit minutes before, having decided
that the lockhouse could not get back to a
16‐foot gate setting in time for the tow to avoid
a powerful outdraft.
These findings are supported by the record and are not
tainted by any legal error. We thus conclude that the district
court’s analysis of Inland Navigation Rule 5 was sound.
Finally, we consider Rule 7, the Risk of Collision rule,
which in pertinent part says:
(a) Every vessel shall use all available means
appropriate to the prevailing circumstances and
No. 16‐4264 15
conditions to determine if risk of collision exists.
If there is any doubt such risk shall be deemed
to exist.
* * *
(c) Assumptions shall not be made on the basis
of scanty information, especially scanty radar
information.
33 C.F.R. § 83.07.
The Claimants’ arguments with respect to Rule 7 largely
repeat the points they make with respect to Rules 2 and 5.
Once again, they contend that Captain White and Pilot
Shrader violated the rule (this time Rule 7) by failing to speak
up when they realized that the transit was not going as
planned. The captain should have realized, they argue, that
the plan to lower the gates to 16 feet had been scrapped or at
least had run into trouble. They criticize Captain White for
thinking, at 5:02 p.m., that Captain Ice’s statement that the
gates were “going down to 55” was a progress report, not a
statement that 16 gate‐feet was no longer the goal. Worse, at
5:16 p.m. when Captain Ice radioed that he was “telling [the
lockmaster] to open up a little bit more gate because they’re
starting to flood up into them houses already,” Captain White
responded, “Okay.” At that point, the Claimants insist,
Captain White should have checked back with Lockmaster
Rodriguez to find out what was happening. Rule 7 imposes a
duty to take all steps to determine if a risk of collision exists.
One easy such step, Claimants argue, would have been to
check with the Lockmaster. Claimants conclude that his
failure to do so was based on nothing more than an
assumption, and such an action is forbidden by Rule 7.
16 No. 16‐4264
The Claimants point to three transmissions in support of
this argument: one at 4:23 p.m., one at 5:02 p.m., and one at
5:17 p.m. The first of these, from Captain Slack of the City of
Ottawa, informed Captain White that “it takes them 4 minutes
to shut the gates and 4 minutes to open them. So, they, they’re
going to shut four on the, the uh, left side and that’s all.” Pilot
Shrader heard this and understood it to be a statement about
the time it would take to move the tainter gates to 16 gate‐feet.
In fact, this was wrong: the gates move at the rate of one foot
per minute, but there is no evidence that any of the river mariners
knew this. Under the circumstances, the court found
nothing unreasonable about the Dale Heller’s lack of a reaction
to this transmission.
We already have discussed the 5:02 p.m. transmission,
known to the parties here as the “76‐to‐55” message.
Although a stranger to the situation might see this as
ambiguous, Captain White had no reason to think that the
IRCA plan, as confirmed at the captains’ meeting, was not in
place. A change from a 16‐foot gate to a 55‐foot gate would
have been enormous, and he had no reason to think that such
a significant change would be made without anyone’s
informing him. Tellingly, Captain White was uncomfortable
with a gate setting of only 23 feet, which first prompted him
to hold at Ballards Island on April 17. The court found his
reliance on the earlier plan to be reasonable. That finding is
not clearly erroneous.
Finally, while the 5:17 p.m. “open more gate” transmission
from Captain Ice to Captain White is certainly troublesome,
the court discussed it in detail earlier in its opinion. Captain
Ice explained it this way:
No. 16‐4264 17
Prior to that transmission—that was actually a
mix‐up in my words—Captain Charlie [White]
had said to me, I’m starting to get aground or
I’m starting to suck down, as he’s trying to come
ahead on it. And I was getting ready to tell him,
I’m going to pull your stern out, and just as I
grabbed the radio, Jeff [Griffin] [a crane operator
for the Corps who was working as an observer]
said, hey, they’re flooding the houses;
I’m telling them to open up dam. And I just instantly
repeated what he said rather than finishing
my transmission.
The district court credited this explanation. Importantly, it
also found that neither a towboat operator such as Captain
Ice, nor a crane operator for the Corps, had the authority to
instruct the Lockmaster to take any actions. The Lockmaster
had the exclusive authority and duty to operate the gates and
to manage all traffic through the canal. 33 C.F.R. § 207.300(a).
Just as Rodriguez’s regulatory authority supports the district
court’s conclusion that his actions were the sole proximate
cause of the allusion, it suggests that Captain White did not
violate Rule 7 by continuing after the “open more gate” transmission.
He reasonably—although erroneously, as it turned
out—relied on Rodriguez prudently to exercise his sole authority
over the gates and passage through the canal. In addition,
the court’s review of other evidence, including photographs,
convinced it that there was no flooding at that point
to be observed.
Taking all the facts into account, the district court concluded
that the Claimants also failed to establish a violation
18 No. 16‐4264
of Inland Navigation Rule 7. We find no clear error in the factual
finding that Ingram, and its vessel the Dale Heller, were
not at fault for failing to question, mid‐transit, whether everyone
was still following the IRCA plan.
The Flood Claimants’ failure to demonstrate a violation of
any Rule of Inland Navigation means that the Pennsylvania
rule does not come into play. That rule, which the Claimants
raised for the first time in their post‐argument briefing at the
district court, addresses the finding of fault when a regulatory
violation has been shown:
But when, as in this case, a ship at the time of a
collision is in actual violation of a statutory rule
intended to prevent collisions, it is no more than
a reasonable presumption that the fault, if not
the sole cause, was at least a contributory cause
of the disaster. In such a case the burden rests
upon the ship of showing not merely that her
fault might not have been one of the causes, or
that it probably was not, but that it could not
have been.
The Pennsylvania, 86 U.S. at 136 (1873). This shifts the burden
of proof from the claimant to the shipowner, and it requires
the shipowner to rule out all possibility that the regulatory
violation contributed to the accident. But that onerous burden
does not arise unless the predicate violations are proven, and
they were not in this case. The Pennsylvania rule is thus of no
help to the Flood Claimants.
Our conclusions with respect to the Inland Navigation
Rules make it unnecessary for us to address Ingram’s
entitlement to exoneration and limitation of liability under
No. 16‐4264 19
the Limitation Act, 46 U.S.C. § 30501, et seq. We thus have no
comment on this part of the district court’s opinion.

Outcome: The flooding that struck Marseilles in April 2013 was
terrible. It caused millions of dollars of damage to individual
property owners, the City itself, and an elementary school.
Whether the barge accident we have been discussing caused
some or all of that flooding is an issue the district court did
not reach, because it found that the accident itself was solely
caused by the Army Corps of Engineers’ Lockmaster
Rodriguez. Because of the discretionary function exception to
the Federal Tort Claims Act, the Corps cannot be sued for
Rodriguez’s actions, however negligent or inexplicable they
may have been. The court’s finding that Rodriguez was solely
responsible is, like its other findings of fact in this case,
supported by the record and not clearly erroneous. We thus
AFFIRM the judgment of the district court.

Plaintiff's Experts:

Defendant's Experts:

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