### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 4264

L ARRY A LEXANDER

, et al.

, Claimants

‐ Appellants

,

v.

I NGRAM B ARGE C OMPANY

,

Petitioner

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 13 C 3453

— Amy J. St. Eve

, Judge

.

____________________

A RGUED S EPTEMBER 7, 2017

— D ECIDED N OVEMBER 21, 2017

____________________

Before W OOD

, Chief Judge

, and B AUER and S YKES

, Circuit

Judges

.

W OOD

, 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, and2 No. 16

‐ 4264

a day later, the nearby town of Marseilles experienced signif

‐

icant 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 dis

‐

trict 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 negli

‐

gence. We conclude, however, that the facts found by the dis

‐

trict 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; an

‐

other 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 the4 No. 16

‐ 4264

Marseilles Canal and was heading upriver. Because of the se

‐

vere 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 Ser

‐

vice), 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 poten

‐ tially could take out a propeller, stop the engines of the tow

‐

boat, and set the entire flotilla loose in the fast water. The fore

‐

cast had worsened from moderate flooding to just below ma

‐ jor 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 sev

‐

eral 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 Com

‐

mittee 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 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 of6 No. 16

‐ 4264

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 re

‐ peated 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. S OIL & W ATER C ONSERVATION 104A, 105A (2014).

The Dale Heller itself briefly went out of control and spun

around 360 degrees, nearly capsizing. Captain White man

‐ aged 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 Marseilles experienced severe flooding. Over two8 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 In

‐

land 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 appliedNo. 16

‐ 4264 9

the Pennsylvania Rule (announced in The Pennsylvania

, 86 U.S.

125 (1873)), which requires such a violator to show that its ac

‐

tion 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 lim

‐

itation 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 Claim

‐

ants 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 ordi

‐

nary practice of seamen, or by the special cir

‐

cumstances 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 cir

‐

cumstances, including the limitations of the ves

‐

sels 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 to

‐ gether, 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 cir

‐

cumstances, 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 ofNo. 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 pri

‐

vate 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 under

‐

took—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 can12 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’ prin

‐ cipal 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 ver

‐

bal commitment to lower the tainter gates to 16 gate

‐ feet

“eliminated Ingram’s obligation to maintain a proper look

‐

out.” 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 per

‐

son 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 nec

‐

essary unobstructed, 360

‐ degree view from the bridge. If that

were not enough, the court noted, Pilot Shrader was in a po

‐

sition 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 demon

‐

strates that no one on the Dale Heller ’s bridge had a truly un

‐

obstructed 360

‐ degree view, because the barges it was push

‐ ing 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 en

‐

tire 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 lo

‐ cated—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 cor

‐ respond to 16 gate

‐ feet, whereas in reality he was moving into

an outdraft at least 11 times stronger, associated with 88 gate

‐

feet.

The district court rejected, as a matter of fact, the Claim

‐

ants’ hypothesis that a proper lookout would have seen that

the gates were entirely out of the water. Testimony in the rec

‐

ord 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 evi

‐

dence, 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 de

‐

cided 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 andNo. 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 ba

‐

sis of scanty information, especially scanty ra

‐

dar 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 mar

‐

iners 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 opera

‐

tor for the Corps who was working as an ob

‐

server] said, hey, they’re flooding the houses;

I’m telling them to open up dam. And I just in

‐ stantly repeated what he said rather than finish

‐ ing 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” trans

‐

mission. He reasonably—although erroneously, as it turned

out—relied on Rodriguez prudently to exercise his sole au

‐ thority over the gates and passage through the canal. In addi

‐

tion, the court’s review of other evidence, including photo

‐ graphs, convinced it that there was no flooding at that point

to be observed.

Taking all the facts into account, the district court con

‐

cluded that the Claimants also failed to establish a violation18 No. 16

‐ 4264

of Inland Navigation Rule 7. We find no clear error in the fac

‐

tual finding that Ingram, and its vessel the Dale Heller

, were

not at fault for failing to question, mid

‐ transit, whether every

‐

one 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 underNo. 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.

IV

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

A FFIRM the judgment of the district court.