The opinion of the court was delivered by: WILLSON
Libellant Judith Beeler, a minor, was injured when the outboard motorboat in which she was a passenger went over the crest of dam 7 in the Allegheny River near Kittanning, Pennsylvania, in this district on June 12, 1961. Alleging that Judith Beeler's injuries were the proximate result of the negligence of the United States, in that employees of the Corps of Engineers, United States Army, did not properly locate signs warning of the dam so as to be visible to craft on the river, Charles Beeler and Ruth Beeler, as parents and natural guardians of Judith Beeler and on her behalf, and also in their own right, instituted this action against the United States. This suit was originally brought under the provisions of the Federal Tort Claims Act (28 U.S.C. § 1346) with a demand for a jury trial. However, when it was determined that libellants' exclusive remedy upon this maritime cause of action lay under the Suits in Admiralty Act (46 U.S.C. § 741 et seq.), libellants were permitted to amend their complaint to bring their cause within the provisions of the latter statute. See 338 F.2d 687, (3d Cir. 1964). Subsequently, respondent United States was permitted, under Admiralty Rule 56, to implead as a respondent Eugene Kober, operator of the boat in which Judith Beeler received her injuries.
In so impleading Kober, the United States alleged that it was his negligence in the operation of the boat which was the sole cause of the injuries received by Judith Beeler.
The case has been tried non-jury on the issue of liability only. The testimony taken at the trial has been transcribed and has been fully considered as have the briefs of counsel.
Dam 7 is one of eight such structures located on the Allegheny River. These dams and concomitant locks allow slackwater navigation of the river for a distance of some 72 miles above its mouth at Pittsburgh. The construction of dam 7 was authorized under the River and Harbor Act of July 25, 1912, c. 253, 37 Stat. 201. Actual construction took place between 1928 and 1931, and the lock was opened to navigation in 1930. Dam 7 is a fixed-crest dam, that is, it is so constructed that the crest of the dam is normally submerged below the surface of the river water flowing over it. Thus, no portion of the dam itself is visible to the boater approaching from upstream. The dam lock is on the right bank going downstream.
The dam is 916 feet in length from the abutments on the left bank to the river wall of the lock on the right bank. The lock chamber is 360 feet long and 56 feet wide. The river wall extends some 200 feet and the guide wall or land wall extends some 350 feet upriver from the dam. Both walls rise some 10 feet above the crest of the dam, but because of the high stage of the river on the day of the accident, approximately 6 feet of the walls were above water. The river wall is painted in diagonal stripes of black and white for a distance of 15 feet from its upstream end. Also extending above the surface of the river is the lockhouse, which is located next to and rises above the land wall. The river channel has been maintained to project depth of 9 feet.
There is no dispute as to how the accident occurred. The facts concerning the happening of the accident were established by the testimony of libellants' witnesses. Eugene Kober, respondent-impleaded, testified that at the time of the accident, he was 20 years of age. His family had owned boats for several years, and in 1961 owned a 16-foot fiberglas boat equipped with a 70 horsepower outboard motor. The boat had 2 split bench-type seats running athwartships. The controls for the boat, a steering wheel and a hand throttle-gear change mechanism, were located at the right front seat of the boat and connected with the outboard motor by means of cables running through blocks. This boat was kept at the Kober home and transported by trailer to wherever the family boated. Kober's boating, for some 4 or 5 years prior to 1961, had been done exclusively on Lake Chautauqua, New York, although for 2 or 3 years previous to that, he had boated on the Allegheny River near Oakmont and Highland Park, more than 30 miles downstream from dam 7. Kober had not operated a boat anywhere during the 2 seasons previous to 1961. During his earlier boating on the Allegheny, Kober had been aboard a boat which had passed through the lock at Oakmont, and had boated in the vicinity of other dams and locks.
Kober's first boating on the Allegheny in 5 to 7 years took place just 2 days prior to the accident. On Saturday, June 10, 1961, Kober transported the boat to a friend's cottage near Mosgrove, Pennsylvania, on the Allegheny River upstream some 6 miles from dam 7 at Kittanning. On that day, Kober launched the boat at Mosgrove, but did not venture more than a mile in any direction on the river, and meeting with no untoward events, left the boat at Mosgrove and returned home.
The following Monday, June 12, 1961, Kober returned to Mosgrove at about one o'clock in the afternoon. Other than the Saturday preceding, he had not been on the Allegheny River at Mosgrove for more than 5 years, and only 10 or 15 times then. Although he was unfamiliar with the river, he apparently took no measures to acquaint himself with its characteristics, for he testified that he knew nothing of the currents, shoals, or obstructions in the river other than that there was a sandbar at Mosgrove. He knew that there was a dam at Kittanning downstream from Mosgrove, having seen it at times from the highway which he traversed on his way to Mosgrove. He did not know exactly how far distant this dam was from Mosgrove, but felt that the distance was between 5 and 10 miles. He was unaware of the existence of river charts, and hence neither possessed nor consulted any to determine the location of the dam, which was in fact 6 miles below Mosgrove. Prior to that Monday, Kober had but rarely ventured farther than 2 or 3 miles from his dock.
That Monday afternoon, Kober was accompanied by Judith Beeler and her brother Charles - neither of them an experienced boater. The three of them launched the boat at about 3 o'clock, and with no particular destination or activity in mind, proceeded downstream. About halfway downstream to the dam, they put in for some refreshments, but did not inquire about the dam and instead continued downstream.
Kober was in the front seat, operating the boat, while Judith Beeler and her brother were perched on the backs of the rear seats, on either side of the boat. The weather was clear with the sun shining, visibility was good, but the water surface was somewhat rough. The speed of the boat as it proceeded downstream was between 20 and 25 miles per hour. At this speed the boat planes and as it had been raining the day before Kober testified that he was concerned about logs and other debris which might be in his course.
Kober was not aware of the dam until he was about 50 feet upstream from it, when he first saw the turbulence below the dam caused by the cascading water of the river. Believing that he could not turn the boat in time to avoid the dam, he opened the throttle, - as he had been taught to do should he encounter a situation of this sort - and shot over the dam. Contact with the water in the lower pool was solid, and the boat did not capsize. Judith Beeler was thrown off her perch and onto the sole of the boat, and thereby sustained the injuries which occasioned this action.
Lieutenant Commander Rudolph E. Anderson, United States Coast Guard, called by libellants, testified that from upstream, seeing the dam was difficult, but that if a person were - "looking and with a discerning eye" - he could see the break in the water indicating the presence of the dam from about 200 feet upstream. According to Commander Anderson, the Coast Guard responsibility extends to placement and maintenance of buoys and other navigation aids which mark the channel of the river. 14 U.S.C.A. § 2; 33 C.F.R. § 62.01-1, (1962). And there were no regulations requiring the Coast Guard to post warnings to boaters in the proximity of the dams, and therefore, none were posted by the Coast Guard. He, however, testified that there ...