This is a case involving a water craft crossing over a low head dam.
I. Facts:
1. At approximately 1530 hours on April 27, a 14’ Cub Aluminum, John type rowboat carrying three occupants, Wk, Dh and Rh was carried over the crest of a low head dam at mile 271, Lg River, near the town of Se. The boat capsized in the dam’s boil resulting in the deaths of two of the occupants with Wk being the only survivor. Rh’s body was pulled from the boil shortly after the County Rescue Squad arrived at the scene. Dh’s body was recovered on 2 May.
2. Per the State Boating Accident Report, there is no determination of either owner or operator of the boat. An electric trolling motor was carried aboard but not used due to the force of the current. Per his deposition, Wk states that the trolling motor was “useless that day.” The boat was steered by using a short pole, a 3.5 foot broken broom handle, to push off objects in its course of travel.
3. No Personal Flotation devices were aboard the craft. The decedents had been drinking alcoholic beverages. Postmortem BAC determination of Rh was .327, a similar determination of Dh was .373. The medical examiner’s final report indicates “Contributing Condition: Ethanol Intoxication.” Wk states in his deposition that he did not drink any alcohol that day. However on cross examination Wk does admit that at some time during the 24 hours preceding the boat trip he may have consumed a number of beers and smoked marijuana.
4. The river was running high and fast as indicated by Wk who himself was unaware of the presence of the low head dam. He did not know if the other two men were knowledgeable concerning the dam.
5. In Wk’s deposition he states that the dam appeared suddenly after the boat rounded a turn in the river, allowing the occupants no time to react or take appropriate steering actions. Per the engineering drawings and maps supplied by the Corps of Engineers, the nearest significant turn in the river is approximately 1000 feet upstream of the dam.
6. Scale engineering drawings show that the top of the dam is 6 feet above the downstream outflow apron.
7. Section 235.200 Required equipment, State Revised Statutes, paragraph (1) states: Every vessel shall have aboard:
(a) Personal Flotation devices of the type and quantity as prescribed by the United States Coast Guard; [e.g.: One (1) Type I, Type II, or Type III personal flotation device for each person on board the Class A (under 16’) recreational vessel]…
(d) Such additional equipment designed to promote the safety of navigation and of persons as the department may find to be appropriate for which it has provided in its administrative regulations.
Section (3) states: No person shall operate…a motorboat which is not equipped as required by this section…or which is not safe for operation as a motorboat.
8. There is no requirement for lighting or signs stated in the Corps of Engineers permit application file. Charts for the river indicate that “ 9.0 Foot Navigation channel maintained only to mile 7.0 of the river. There are no navigational markers evident on the chart of the river or above mile 9.0 on the river. Corps of Engineers jurisdiction is listed at terminating at mile 226.0 above the mouth of the River.
III. Opinions:
1. As an experienced US Coast Guard Boarding officer, and as a supervisor of such officers, I find the persons on board the craft were involved in a “Manifestly Unsafe Voyage.” This is a provision of boating law which allows a boarding officer to terminate a recreational boating outing for cause. The cause in this case involves the following:
A. Boating in admittedly high/swift and presumably cold (April) water;
B. Without personal flotation devices (PFDs);
C. While intoxicated;
D. Without a suitable means of propulsion;
E. Without knowledge of possible downstream conditions.
2.State law indicates: No person shall operate…a motorboat which is not equipped as required by this section…or which is not safe for operation as a motorboat. The primary requirement per state law involves having PFDs aboard for each person. Additionally, the boat in this case is a motorboat as it did have a means of propulsion, an electric trolling motor, aboard (but not used paradoxedly due to conditions of a strong current). Therefore the craft also meets the requirement for: “No person shall operate…a motorboat…which is not safe for operation [as such].”
3. The foregoing two paragraphs clearly contravene paragraph 4.4 in expert Dn’s report where he contends that: “There is no information or record that the actions of Mr. Dh, Mr. Rh or Mr. Wk either caused or contributed to this accident. In this paragraph, 4.4, of his report Mr. Dn further states that there is no indication that the presence of alcohol in the Josephs either caused or contributed to this accident. This contention is also clearly erroneous as the medical examiner’s report specifically lists ethanol intoxication as a contributing condition to their deaths. It should also be noted that the .327 BAC of Rh is almost at .350, with a BAC of .350 considered the 50 percent lethal dosage point for ethanol. Similarly, since Rh’s body was recovered, as attested in Dn’s report, shortly after the incident, ethanol presence due to decomposition is not a factor in Rh’s BAC.
4. In his deposition Dn states that navigation requirements mandate marking of the dam on the river. This is totally unsupported by US Army Corps of Engineers evidence that the river is not either maintained past mile 9.0, nor does their [i.e.: Federal] jurisdiction operate beyond mile 226. Furthermore there is nothing in the dam/intake application documents submitted by the city requiring lighting or signs by the Corps of Engineers. Additionally, Dn cites State regulations requiring a water inlet to be marked for the public. However, there is nothing in his citation delineating where and how such signs should be placed or sized.
5. The concluding sentence of paragraph 4. immediately above speaks to a sign or signs marking a water inlet. If such signs are present they are effective as safety ploys only in comparison to the ability of those operating on the river to see and interpret them, then carry out an appropriate response to them. Note that Wk states in his deposition that after rounding the turn in the river upstream of the dam, the boaters did not have time to react to the dam and to get away from it by making toward shore. However, the map showing the dam in the riverplaces the last upstream turn approximately 1000 feet from the dam. The river, per photos and video pictures can not be considered extremely wide, even during high water conditions. If the boaters could not maneuver their craft in a 1000 foot distance to get ashore, how would they be able to react positively to a sign positioned at the dam, or more properly at the water inlet proper, which is below the dam? If a sign were available 500 feet from the dam, in the supposed near lethal inebriated condition of at least two of the boats occupants, would even this distance suffice?
6. Engineering scaled drawings show the dam crest elevated 6 feet above the outflow apron. Video taken at the scene indicates that the water level is approximately 18 inches below the dam crest. Rh’s body was measured as 5’ 5” long at autopsy. Dh was measured as 5’ 7.5” in length. Assuming that the depth of water over the outflow apron was between 4.5 and 5 feet, both brothers should have had a reasonable expectation of being able to keep their heads above water. That is, if they were sober. Balance impairment is the first measurable effect of low dosages of ethanol. At the impairment/intoxication level apparent in this incident, the decedents’ erectly standing in or out of still water was problematic. In water moving around a boil, there is obvious cause for concern for impaired persons. Wk may have survived because he could walk out of the river. Unfortunately the brothers apparently could not.
III. Conclusions:
1. This fatal incident is based totally on the irresponsibility of the ignorant, illegal, unreasonable, egregiously uncaring occupants of the boat.
2. I find no reason for federal requirements for marking the dam/water intake.
3. Even if the dam/water intake had been marked, there are no standards for indicating how this is to be accomplished, I believe the grossly cavalier, incomprehensively illogical behavior manifest by the boaters would have rendered any useable, meaningful sign information mute and void.
