Full opinion text
MEMORANDUM ALETA A. TRAUGER, District Judge. A bench trial was held on claims for negligence, negligent supervision and en-trustment, and loss of consortium arising from a boating accident that occurred on the Cumberland River. In accordance with Rule 52 of the Federal Rules of Civil Procedure, the court enters judgment for the plaintiff and for the counter-plaintiffs and sets forth herein its findings of fact and conclusions of law. BACKGROUND The plaintiff, Becky Matheny, is the widow of Ronald Matheny, who drowned on June 5, 2005, when a small boat in which he was fishing capsized in the Cumberland River. Third-party defendant and counter-plaintiff Thomas “Steve” Lawrence, Mr. Matheny’s cousin, was the owner and pilot of the fishing boat in question. The fishing boat capsized when it was swamped by the wake of a tug boat, The Patricia H., owned by defendant Tennessee Valley Authority (“TVA”) and operated by pilot Jeff Ralls, a TVA employee. Mr. Lawrence was successfully rescued by pilot Ralls and his crew. Mr. Matheny, however, drowned before he could be rescued. I. Pre-Collision Events Mr. Lawrence and Mr. Matheny decided, on the spur of the moment, to go fishing in the Cumberland River at approximately 2:30 p.m. on June 5, 2005, a Sunday. The two men habitually fished for catfish in the area of the Cumberland River abutting the Cumberland City Steam Plant, in Cumberland City, Tennessee, because very large catfish can be found in that area. TVA operates the Cumberland City Steam Plant and, pursuant to its operation, floats coal barges on the banks of the river and uses tugboats to push the barges to different locations on the banks and on the island situated in the middle of the river. In addition, a private company, Ingram Barge Co., utilizes towboat fleets to move large groups of coal barges down-river to the plant. Mr. Lawrence and Mr. Matheny planned to fish in the Cumberland River until approximately midnight or 1:00 a.m. They loaded two coolers into the boat — one of which contained a twelve-pack of Mountain Dew and the other, empty and intended for storing the fish that were caught — and drove to the Cumberland Plant, which had a dock that was open to the public. Mr. Lawrence’s boat, which he had purchased used approximately one year earlier, was a 1981 Phantom. The Phantom fishing boat was constructed of fiberglass and measured 14 feet, 10 inches in length. The boat had a freeboard — that is, the distance from the waterline to the uppermost portion of the side of the boat, when the boat is set in water — of roughly 1 to 1.5 feet when moored. When moving, it rode high in the water, such that it had a freeboard of 2 to 2.5 feet. Mr. Lawrence spent a significant amount of time fishing in this boat at the Cumberland Plant and at other areas known to attract large catfish, and he had taken his children and mother out in the boat without incident. The engine was in good working condition. In addition, the boat contained a fully operational bilge pump and a trolling motor with a weak battery. The trolling motor was not used on the day in question. The boat contained no food or alcohol. Mr. Lawrence had two good-quality life vests as well as two poor-quality ones. The poor-quality life vests were sometimes tied to the boat to serve as bumpers. The Cumberland Plant was roughly forty minutes away from Mr. Lawrence’s home, and the two men arrived at their destination at 5:30 p.m. When they embarked onto the river, Mr. Lawrence sat at the back of the boat near the steering wheel, and Mr. Matheny sat at the front of the boat on a seat situated on the upper deck. This was not a pedestal seat but one that was situated flush against the deck, with Mr. Mathen/s feet resting on the lower deck. Because it was flush against the upper deck, Mr. Matheny’s seat was higher than Mr. Lawrence’s; however, it did not extend above the top edges of the sides of the boat. The life vests were on the deck and in reach of the two men. The two men fished in the lower channel between the islands and the steam plant. This channel is 400 feet wide. Conditions on the river were very mild. There was little wind and little current. The Phantom boat did not encounter any other fishing vessels, though fishing is common in the channel. Mr. Lawrence and Mr. Matheny tied off the boat to the skimmer wall, which is located close to the riverbank, just upstream from a group of six barges. The barges were 200 feet long and 35 feet wide. After a period of time, another set of eight barges were moved into place just upstream from the boat by a private tug operated by Ingram Barge Co. Mr. Lawrence alleged at trial that, at this time, he moved the boat downstream to the group of six barges, and tied the boat off to the outside of one of the barges. Subsequently, Mr. Lawrence and Mr. Matheny decided to move the boat a second time to a location nearer to the islands. Moving away from the barges, the two men saw the Patricia H. for the first time, creating a high wake. Captain Ralls is a licensed pilot, having worked for TVA for 7 years and for Ingram Barge Co. before that. He worked the 12-hour night shift, operating the Patricia H., a highly maneuverable flat-front tugboat. The Patricia H. weighs 95 tons when loaded with fuel and gear. The boat has two engines, each with 500 horsepower. The registered dimensions of the boat are 52.5 feet x 22 feet x 8 feet. The tower of the boat is 25 to 30 feet above the deck and the deck is 7.5 feet above the water. The boat creates a wake at a 45 degree angle and also creates turbulence from the prop engines. The Patricia H. does not contain a working RPM gauge or any other instrument that allows the pilot to determine how fast he is going. Instead, the pilot and crew estimate the speed by noting the mile markers. The terminology used by the crew for speed is “slow walk,” “medium walk,” and “fast walk.” The crew — on the day in question, Craig Welker and Dwayne Van Zant — report the speed to the captain from the deck. However, the crew only stands on the deck when the boat is pushing a barge. When the boat is traveling without a barge, or “light boat,” the crew remains inside the cabin, and Captain Ralls estimates the speed himself by referring to the mile markers and listening to the engines. Captain Ralls’ job is to push loaded coal barges to the unloader and then to move the empty barges back to a position adjacent to the island, from which they are eventually sent to be re-filled with coal. On June 5, 2005, Captain Ralls arrived at the plant at 7:00 p.m., spent fifteen minutes getting pre-job instruction from the coal tower foreman, then met with his crew. Soon thereafter, at roughly 7:25, Captain Ralls, Mr. Welker and Mr. Van Zant had boarded the tugboat and set upon the evening’s work. First, the Patricia H. traveled downstream to the group of six barges, next to which, against the skimmer wall, Mr. Lawrence had moored his boat. During this trip, Captain Ralls saw the fishing boat tied against the skimmer wall, between the two groups of barges. Mr. Van Zant also saw the boat in this location. During this first trip, the Patricia H. passed the location of the fishing boat without incident. The Patricia H. pushed one of the barges — specifically, the barge on the outside corner, farthest from the fishing boat — from this group of six to the unloader, which was upstream. Captain Ralls testified that it takes approximately fifteen minutes to go and get a barge, bring it to the unloading area, and move another empty barge away from the un-loader. The crew of the Patricia H. performed this function, taking an empty barge to the group of barges across the channel, next to the island, and then made a second trip to the downstream group of barges, passing the fishing boat a second time. The Patricia H. was headed towards the barge on the outside, upstream corner of the group, closest to where the fishing boat had been located on the first trip. Captain Ralls testified that, during this second trip, once again, he saw the fishing boat. Once again, the fishing boat was located in between the two groups of barges. However, the boat had untied from the wall and was moving out of this make-shift harbor, towards the open part of the channel. Captain Ralls testified that the boat turned, facing upstream, and that he watched the boat as it cleared his stern. Some time after he passed the boat, Captain Ralls heard the screams of the men in the water and, at that time, realized that the fishing boat had capsized. II. The Accident Mr. Lawrence’s boat capsized when it encountered the wake of the Patricia H. on the tug boat’s second trip downstream. There were no other boats in the area and no other conditions existed that could have caused the fishing boat to capsize. Likewise, the evidence at trial does not support a finding that the accident was caused in any way by a defect in the fishing boat itself. Although the precise speed of the Patricia H. and the size of the wake — at best, estimated by the parties at the time of the accident — cannot be determined, it can be determined — and the court so finds — that the wake was large enough to cause Mr. Lawrence’s fishing boat to capsize and to throw Mr. Lawrence and Mr. Matheny into the water. A. The Position of the Boats Mr. Lawrence testified that, when he first saw the Patricia H., he was on the outside of the group of six barges, downstream from his original location against the skimmer wall. As the Patricia H. approached, he saw that it was running at a high speed and surmised, from the noise coming from the boat, that both engines were running wide open. He changed directions, attempting to outrun the boat by going downstream, but saw that he was hemmed in between the wake and the upstream set of barges, and so turned again — completing a 360 degree turn — to face the wake and ride over it. He passed over the first wave, with some water entering the boat; however, by the time the second wave hit the boat, its front portion was under water. The second wave sank the boat. Mr. Lawrence and Mr. Matheny found themselves in the Cumberland River, screaming for help. Captain Ralls testified that, on both trips, the fishing boat was located within the harbor created by the two sets of barges — eight barges upstream and six barges downstream — but that on the second trip it was moving out of this area, towards the path of the Patricia H., when he first saw it. The fishing boat was 45 degrees from the shoreline, creeping forward at a very low speed. Captain Ralls testified that, although he can stop the tug boat very fast by reversing the engines, he did not do so. He did testify, however, that he slowed down upon encountering the fishing boat, when he was still 25 feet from the upstream edge of the downstream barges. Captain Ralls’ crew, on the other hand, testified that he slowed down only when he came to the downstream barges, approximately 600 yards past the area of the capsize. According to Captain Ralls, the fishing boat turned upstream, traveling in the opposite direction of the tug boat. He watched the boat clear his bow and then turned to face the approaching group of barges. Captain Ralls did not see the boat capsize, nor did any of his crew. From this conflicting testimony, it is far from clear exactly where the fishing boat was located when it interacted with the wake of the Patricia H. However, in either case, it is clear that the boat was in a position such that it could not escape the effect of the wake. In fact, the placement of the boat in the small harbor created by the two sets of barges — in accordance with Captain Ralls’ testimony — would lead great credence to Mr. Lawrence’s testimony that he could not outrun the wake because there was no room between the wake and a set of barges. In any case, Mr. Lawrence testified that he did not see the Patricia H. until its second pass towards the set of downstream barges, at which time the wake could not be avoided. No evidence contradicts that testimony. Even if the court were to find that, during both trips, the fishing boat was located between the two sets of barges, that would still comport with Mr. Lawrence’s testimony that he first saw the Patricia H. only seconds before the capsize. When the Patricia H. passed for the first time, the boat was tied to the skimmer wall, and it is perfectly consistent for Mr. Lawrence not to have noticed the Patricia H. at that time. The location of the Patricia H., too, is an important factor. On the first trip, the Patricia H. was traveling to the barge farthest downstream among the group of six barges. On the second trip, the Patricia H. was traveling to the farthest upstream barge in that group. This difference would have created a different, narrower angle of approach for the Patricia H. In short, apart from the fact that the fishing boat was moving away from the skimmer wall and towards the Patricia H. when it encountered the wake, the Patricia H. also would have been closer to the skimmer wall between the two sets of barges, due to this change in destination. Accordingly— apart from a change in speed of the tugboat — it is quite possible that the Patricia H.’s wake would not have been noticeable to Mr. Lawrence when it first passed, even if his boat traveled only a very small distance in the intervening time. Regardless of where, exactly, the fishing boat was positioned at the time of the accident, it was in a position such that the wake caused by the passing tug created a hazard that Mr. Lawrence could not overcome. B. The Speed of the Tug The court finds that the Patricia H. was capable of traveling at a high enough speed to create an unsafe wake for fishing boats and that, in this instance, it was doing so. Mr. Lawrence estimated that the Patricia H. was traveling 20 miles per hour when he first saw it approaching him; however, the defendant’s expert witness, Arthur Sargent, testified that the Patricia H. is not capable of that speed. Nonetheless, the Patricia H. did not need to be moving at 20 miles per hour in order to be going too fast under the circumstances. The court does not find Mr. Sargent’s opinion regarding the exact speed of the Patricia H. to be very compelling. Mr. Sargent testified that the Patricia H. could not have been going faster than 7 miles per hour because, if it were to go faster, it would create a large enough wake to splash water onto its own deck. Mr. Sargent also testified that, at the 7 miles per hour speed, the wave created by the wake would only be .75 feet tall at a distance of 50 feet away from the boat which, according to Mr. Sargent, would not cause any danger to a small fishing boat such as Mr. Lawrence’s Phantom. Although the Patricia H.’s freeboard at its bow is not particularly high, it is considerably higher than the Phantom’s freeboard, and it seems inconsistent that a wake that is almost high enough to swamp the Patricia H. itself would, simultaneously, pose no danger to a much smaller boat floating nearby. Mr. Sargent came by his estimate of 7 miles per hour by riding in the Patricia H. with a GPS device and instructing a pilot to operate the tug until the water was just coming over the head-log of the boat. Captain Ralls agreed that the boat could only have been traveling “a few” miles per hour at the time of the incident, although both engines were engaged at that time. However, Captain Stoller, an expert witness for the plaintiff and a former tugboat captain, did not agree that the speed could be determined to have been 7 miles per hour or lower, or that, at 7 miles per hour, the Patricia H. would necessarily take on excessive water. Further, the deckhands were not on board during the time in question, but were inside the cabin and therefore do not know for certain whether or not any water splashed on the deck while the Patricia H. was in progress. Although the deckhands testified that they observed no water on deck when they came out of the cabin to aid in the rescue of the two men, it can hardly be imagined that the deckhands made a thorough investigation of the deck’s wetness, their attention being taxed by the sudden necessity of rescuing two men. C. The Size of the Wake Although the exact size of the wake created by the Patricia H. cannot be determined, the court finds that its wake was large enough to create a hazard to the fishing boat and that the wake did, in fact, cause the fishing boat to capsize. In particular, the court finds that the defendant’s contention that the wake could not have exceeded .75 feet does not comport with the evidence presented at trial. The defendant’s expert, Mr. Sargent, testified that, in accordance with tests he performed two years after the accident occurred, the wave created by the wake of the Patricia H. could not have exceeded .75 feet at a distance of 50 feet away from the tugboat. However, Mr. Sargent’s finding appears not to have been based on reliable test conditions and was contradicted by the testimony of other witnesses. First, Mr. Sargent measured the height of the wave from the island in the middle of the Cumberland River after having measured the speed of the Patricia H. as 7 miles on a prior trip. That is, Mr. Sargent first found the maximum speed of the Patricia H. to be 7 miles per hour — a finding which the court does not adopt — and, second, measured the wake of the tugboat from the shore of the island. On this second trip, Mr. Sargent kept his GPS device with him and instructed the pilot of the tugboat to go at the same speed as he had been going before. However, the pilot did not have a GPS device to tell him that he was going 7 miles per hour on this second trip. Therefore, Mr. Sargent cannot say exactly what speed the tugboat was traveling when he took that measurement. Further, Mr. Sargent’s finding is contradicted by the testimony of several fact witnesses. Mr. Van Zant, a deckhand on the Patricia H., testified at trial that, at a medium walk, the Patricia H. would create a 1.5 foot wake and, at a fast walk, the tugboat would create a 2 foot wake. At his deposition, Mr. Van Zant testified that, at a regular speed, the Patricia H. would create a wake of 1.5 to 2 feet at a distance of 50 feet from the tugboat, and that pilots sometimes go faster, creating a larger wake. At trial, Mr. Van Zant testified that sometimes the tugboat traveled at a speed fast enough that water came up to the top edge of the ratchet box, which is located on the side of the Patricia H. and sits anywhere from 2.5 to 4 feet from the surface of the water, depending on the amount of fuel the tugboat is carrying. Obviously, at this speed, the wake would exceed 2 feet. Because Mr. Van Zant has extensive experience observing the wake and speed of this particular tugboat, the court finds his testimony on this point to be particularly convincing. Although, at his deposition, Captain Ralls testified that he could not estimate the size of the wake from his vantage point in the tower of the Patricia H., at trial, he estimated the size to be one foot, from its tallest point to its lowest point. Finally, Mr. Sargent’s finding is also contradicted by the testimony of Mr. Lawrence, who estimated the size of the wake to have been at least 3 feet. In addition, Mr. Sargent testified that, although the size of the wave at a distance of 50 feet would initially have been .75 feet, it actually would have doubled to 1.5 feet after reflecting off the side of the skimmer wall. Accordingly, assuming that Mr. Sargent’s findings are correct, the fishing boat would have been facing a 1.5 foot wave. If, in accordance with portions of Mr. Van Zant’s testimony, the court were to find that the height of the wave was 1.5 to 2 feet high at a distance of 50 feet, then the actual size of the wave that the boat encountered would have been 3 to 4 feet. The plaintiff’s expert, Captain Stoller, testified that the speed of travel is very important in determining the estimation of wake size, and that even a slight increase or decrease in speed could significantly affect that determination. Unfortunately, Captain Ralls does not know exactly how fast he was going, and the speed of the vessel cannot be accurately reconstructed. However, what can be determined accurately is that the size of the wake was large enough to swamp Mr. Lawrence’s boat. No other conditions have been identified that could have contributed to the fishing boat’s capsize. The wake was large enough such that, in his position, Mr. Lawrence could not avert the accident by either outrunning the wake or turning to face it. The testimony at trial, taken as a whole, is certainly consistent with a wake size large enough to overwhelm the small fishing boat. Accordingly, the court finds that Mr. Lawrence’s fishing boat was overwhelmed by the Patricia H.’s excessive wake. III. Post-Collision Events Captain Ralls had steered the Patricia H. to a resting spot perpendicular to the coal barge on the upstream corner of the group of six barges, with his cabin door open, when he first heard the men screaming. He did not hear the screams earlier, even though he had been closer to the point of the accident. This is because, in his resting spot, the cabin’s open door directly faced the location of the men. Captain Ralls turned the tug around and summoned the deckhands via radio to come out on the deck to aid in the rescue. Captain Ralls did not sound the man-overboard horn. He testified that the only purpose of this horn is to signal to the deckhands that there is a man overboard and, therefore, it was unnecessary to use it, having already used the radio for this purpose. They were 65 to 70 feet from the skimmer wall and approximately 600 yards away from the men in the water. Captain Ralls alerted the coal tower about the accident and told them to call 911. As the Patricia H. closed in to a distance of approximately 75 feet away from Mr. Lawrence and Mr. Matheny, the two fisherman first came into view. When the tugboat was within 30 feet of Mr. Lawrence and Mr. Matheny, approximately 4 minutes after Captain Ralls had set course towards the two men, the deckhands began throwing life rings to them. Rope had previously been tied to the life rings such that, if the men were to catch the rings, they could be hauled onto the boat. However, the men were unable to grab hold of the life rings. The Patricia H. continued to close the gap between itself and the two men. Mr. Lawrence and Mr. Matheny were roughly 10 to 15 feet apart. Mr. Lawrence was holding onto a large cooler. Mr. Matheny was trying to swim, struggling to stay above water. The deckhands continued throwing the life rings. At first, Mr. Van Zant concentrated his efforts on rescuing Mr. Lawrence, and Mr. Welker concentrated his efforts on rescuing Mr. Mathe-ny. Each time the ring was tossed to Mr. Matheny, he would reach out to grab it, but the ring would slip out of his grasp. Then he would bob down under water and back up again. This occurred three times. The third time that Mr. Matheny’s head went under water, it stayed submerged for a slightly longer period and, when it emerged, he looked different. At this point, Mr. Van Zant turned his attention to Mr. Matheny’s rescue. Mr. Welker grabbed an eight-foot pike pole to hook Mr. Matheny and bring him to the boat. The tugboat was approximately 6 feet away from Mr. Matheny. The boat contained another pike pole which was 20 feet long, but the deckhands did not use the longer pike pole because it was difficult to maneuver. After the deckhands succeeded in pulling Mr. Matheny to the side of the boat, all three men cooperated to lift him onto the deck. Captain Ralls and Mr. Van Zant checked Mr. Matheny’s pulse and then began assisted breathing. Two to three minutes passed between the time at which Mr. Welker grabbed the pike pole and when Mr. Matheny was brought onto the deck. Meanwhile, Mr. Lawrence was still in the water, holding onto a cooler. At one point, Captain Ralls had to go back up to the tower to redirect the boat, as it was going to pass Mr. Lawrence. Mr. Welker continued to throw the life ring at Mr. Lawrence; eventually Mr. Lawrence grabbed the life ring and was hauled onto the deck. Once on deck, Mr. Lawrence asked about his cousin and was told that the men were “working on it.” Captain Ralls and the deckhands were attempting cardiopulmonary resuscitation on Mr. Matheny. Soon they were able to bring the tugboat to shore. Someone was able to pass a defibrillator to the men on deck and they used it on Mr. Matheny. Eventually TVA’s emergency team arrived, and they brought Mr. Matheny to shore on a skiff. Soon thereafter, Mr. Matheny was taken to a local hospital, were he was pronounced dead. IV. The Condition of the Phantom Boat The court finds that the Phantom boat did not possess any defects at the time of the accident that contributed to its capsize. There was insufficient evidence to show that the boat, a 1981 Phantom fiberglass fishing vessel, was overloaded at the time of the capsize, or that the condition of the boat had any contributory effect on its capsize. At trial, Mr. Sargent, TVA’s expert, testified that the Phantom’s maximum load of 900 pounds had been exceeded by 18 pounds on the day in question. This calculation relied on estimates such as 20 pounds of fishing poles and tackle, 16 pounds of life jackets, and 10 pounds of clothing. Mr. Sargent admitted that eight of his weight calculations were estimates, and the court does not find these estimates determinative. Although Mr. Lawrence may have loaded his boat close to the maximum capacity, the evidence does not show that he actually overloaded the boat. In addition, Mr. Sargent testified that the fishing boat violated several regulations listed in 33 C.F.R. Parts 181 and 183. However, on cross examination, Mr. Sargent was unable to state convincingly what those regulations even required, let alone how the Phantom boat failed to meet them. Mr. Sargent testified that the Phantom did not have sufficient flotation material in the space between the inner and outer hull of the boat and that this had caused this area to be flooded. However, Mr. Sargent did not test for this flotation material. He appears to have reached this conclusion by relying on the testimony of another witness who observed — after the fishing boat had capsized — that its hull was not riding properly in the water. This condition, however, does not in and of itself prove that the flotation material requirement was not met, especially in light of Captain Ralls’ testimony that, when he observed the Phantom boat prior to the accident, it was not riding low in the water. Considering the lack of any significant information regarding the flotation material, the court does not find that the Phantom had any such defect. Although Mr. Lawrence has admitted that, at the present time, the hull of his boat has several cracks, the court does not find the existence of these cracks two years after the accident in question to be very compelling evidence of the condition of the boat at the time of the accident. Considering that the boat suffered a capsize, was subsequently tied against the skimmer wall without any supervision or the use of a bumper, and was then misplaced on a trailer such that the fender of the trailer was digging into the hull of the boat (Plaintiffs Ex. 74M, Defendant’s Ex. 20E, 20H), and considering the wear and tear the boat would have suffered in the following two years, the court does not find that the presence of cracks in the hull at the present time establishes that the hull was leaking at the time of the accident. Captain Stoller testified that there was “little reliable evidence to glean” from an inspection performed two years after the accident in question and noted that none of the cracks in the hull identified by Mr. Sargent were visible in the photographs taken in June 2005 or noted by the Tennessee Wildlife Resource Agency (“TWRA”) investigators. It is most likely that the cracks were created as a result of the accident and the subsequent handling of the boat, or over the subsequent two years of its use. Similarly, Mr. Sargent testified that some Phantom boats had been subject to a recall. However, many of the boats identified by Mr. Sargent as having been recalled have very little in common with the boat at issue. For instance, several of the boats were constructed of aluminum, the only similarity with Mr. Lawrence’s fishing boat being that they were issued by the same manufacturer. Only 22 of the 1981 Phantom boats were subject to a recall. Moreover, because Mr. Lawrence purchased his boat used, there is no telling whether his boat was actually recalled, repaired by the manufacturer, and returned to the original owner, which is what typically happens upon a recall. Mr. Sargent pointed to pictures of the Phantom boat shortly after the accident, in which water appeared to be pouring out of small holes in the upper part of the hull, as evidence of preexisting damage; however, he subsequently admitted that a working bilge pump also could have accounted for the streams of water evident in these pictures. (See Defendant’s Ex. 20E) Other photographs indicated tubing that, Mr. Sargent admitted, could be a working bilge pump. (Defendant’s Ex. 20H, 201, 21A) Testimony of other witnesses indicating that the boat did have a working bilge pump and the location of the holes through which the water poured — at the very top of the sides of the boat, which would be floating above water — and the apparent intensity of the water pressure in the photographs lend considerable weight to the finding that the bilge pump was operating in the photographs in question. Other pictures offered at trial appeared to show water coming out of the boat’s drain, which is perfectly consistent with a drain plug having been removed from the boat in order to drain the boat, which would be necessary after a capsize. (See Defendant’s Ex. 28B, 20C, 20D) Other photographs offered at trial showed that, two years after the accident, parts of the boat’s interior had been patched. Mr. Lawrence explained at trial that the speedometer and pitot tube— which were damaged in the accident at issue in this case — had been located in these areas and subsequently removed. Cement was used to seal the areas where these instruments had once been located. Similarly, Mr. Lawrence testified that the bilge pump in his boat was later removed because it never worked after the accident, possibly because it was inadvertently left running for a long period of time after the accident, which was when the photographs, which appear to capture its operation, were taken. (See, Plaintiffs Ex. 20D, 20E) Overall, these photographs are most consistent with a boat being drained and its bilge pump operating to remove water after it was capsized. Finally, Mr. Lawrence testified at trial that life vests were within reach of himself and Mr. Matheny on the boat and that, when the capsize occurred, he threw one of them to Mr. Matheny. Although Captain Ralls, Mr. Van Zant, and Mr. Welker testified that they did not directly observe any life vests, two working life vests were recovered by the TWRA and appear in photographs taken of the boat on the night in question. Accordingly, the court finds that the life vests were on the boat, in reach of Mr. Lawrence and Mr. Matheny. V. Training Received By Captain Rails and his Crew The training received by Captain Ralls and his crew and the testimony of David Duke, a primary supervisor at the Cumberland River steam plant, regarding the policies of TVA indicate that TVA was aware that a tugboat’s excessive speed could cause accidents such as occurred in this case. Captain Ralls has a first class pilot license as well as a tow-operator license and has had safety training in conjunction with obtaining these licenses. In addition, Captain Ralls has earned endorsements to his licenses, allowing him to work on the deck of a boat, to use the radio, and to observe radar. Captain Ralls has been tested on the “Rules of the Road” portion of the Inland Rules of Navigation by the Coast Guard, specifically regarding passing, crossing situations, risk of collision, safety, and good seamanship. He has been trained in collision avoidance and considers the wake of his boat hitting another boat to be a collision. He has worked at several TVA harbors and has no prior citations or investigations regarding his performance. Captain Ralls testified that he was never told by any supervisors to keep a “no wake” speed in the presence of fishing boats or any other boats, but that he could have done so if he had been so instructed. The defendant did proffer some training course material that was used by TVA in its skills training courses, relating to hand signals, man-overboard training, work hazard training, hazard recognition and control, and boating safety, (Plaintiffs Ex. 34), but Mr. Ralls testified that TVA’s training courses had never discussed the specific issue of a vessel capsizing when it crossed an excessive wake of another vessel. Mr. Ralls stated that he did not believe that TVA had ever discussed wake issues in the training sessions. Mr. Van Zant testified about the man-overboard drills conducted by the crew. In those drills, the tugboat crew is radioed from the tower with a message that there is a man overboard in a particular location of the river. Simultaneously, a dummy is dropped in the river at that location. The crew must then travel to the specified location and retrieve the dummy, using a pike pole. The crew does not practice with the life rings for the practical reason that the dummy cannot reach out and grab them. In addition, Mr. Van Zant testified that he had attended the rivers and deck skills training course and the hazard communication course for deck hands. David Duke is presently the coal haul foreman at TVA’s Cumberland City plant. As such he is ultimately responsible to ensure that the employees of the Cumberland City plant obey safety rules. Mr. Duke testified that TVA has no yearly training program specifically for tugboat operation, but that TVA does require yearly evaluations for the tugboat pilots, which he signs. TVA does not train the pilots in the “Rules of the Road” except through informal “on river” training. The rules are not discussed at the rivers and decks training course. At his deposition, Mr. Duke testified that he did not believe that the Inland Rules of Navigation — which include the “Rules of the Road” — apply at all to tugboat operation. In addition, Mr. Duke testified that no aspect of the drowning was a safety issue for TVA and, therefore, it was not addressed at any safety meetings or any other meetings. At trial, Mr. Duke reversed himself and testified that he thought that the Inland Rules of Navigation did apply, but he did not know how many there were or where they were listed. He thought they included the requirements to keep watch, keep the boat lit, avoid collision, and to operate at a safe speed. David Duke testified that there was no specific policy regarding the speed of tugboats, but that there was an expectation that the tugboats would be operated as slowly as possible around fishing boats, with as little wake as possible, “according to the circumstances.” He testified that it is possible to operate the Patricia H. at a no-wake speed. Moreover, if a tugboat was 40 to 50 feet away from a fishing boat, which was itself next to a barge, Mr. Duke testified that the pilot should keep the wake “as little as possible.” Mr. Duke testified that, if he observed a tugboat operating at an unsafe speed, he would call down about it and would have a duty to react, but that he had never had occasion to do that. However, Mr. Duke does not work the night shift, which is when Jeff Ralls pilots the tugboat and when the accident in this ease occurred. Mr. Duke testified that he had found no records of any prior incidents regarding Captain Ralls; however, he did not search the pilot logs for evidence of any such incidents. In the present case, the only record of Captain Ralls’ connection to the accident was in the pilot logs. Therefore, if Captain Ralls had been in prior accidents, Mr. Duke probably would not have found evidence of that. In addition, Mr. Duke testified that Captain Ralls was the most experienced tugboat captain in the Cumberland City plant. CONCLUSIONS OF LAW I. Proportional Liability of the Parties for the Accident Under maritime law, “the elements of negligence are generally the same as a common law negligence action, i. e., duty, breach, causation and damages.” Hartley v. St. Paul Fire & Marine Ins. Co., 118 Fed.Appx. 914, 919 (6th Cir.2004) (citing Pearce v. United States, 261 F.3d 643, 647-48 (6th Cir.2001); 1 Thomas J. Schoenbaum, Admiralty & Maritime Law § 5-2 at 183 (4th ed.2004)). Additionally, under maritime law, the duty of care can be derived from “duly enacted laws, regulations, and rules; ... custom ... or ... the dictates of reasonableness and prudence.” Galentine v. Estate of Stekervetz, 273 F.Supp.2d 538, 544 (D.Del.2003) (citing Pennsylvania R. Co. v. The Marie Leonhardt, 202 F.Supp. 368, 375 (E.D.Pa.1962); see also Biscayne Aqua-Center, Inc. v. Hernandez, 630 So.2d 620, 621-22 (Fla.App.1993)). The Inland Rules of Navigation, 33 U.S.C. § 2002, supply applicable standards of care for determining negligence in admiralty actions. The Inland Rules of Navigation supply “rules of the road” that courts have applied in determining the duty of care in admiralty actions. See Turecamo Mar., Inc. v. Weeks Dredge No. 516, 872 F.Supp. 1215, 1229 (S.D.N.Y.1994) (holding that the Inland Rules of Navigation “encompass long-standing steering and sailing rules and principles, otherwise known as ‘Rules of the Road,’ which govern navigation on inland water”); Federal Ins. Co. v. S.S. Royalton, 312 F.2d 671, 675-6 (6th Cir.1963) (applying an earlier version of the “rules of the road” in an action for contribution in admiralty). Both the plaintiff and the defendant have identified several Inland Rules of Navigation, as well as additional regulations, that apply in determining the standard of care for both parties. As to the element of causation, the doctrine first enunciated in The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148 (1873) applies. Under that doctrine, “when a statutory rule intended to prevent an admiralty accident exists and a party violates that statute injuring a party whom the statute was created to protect, the violating party, to avoid liability, must show that its violation could not have been the cause of the accident.” Pearce v. U.S., 261 F.3d at 648 (emphasis in original) (citing The Pennsylvania, 86 U.S. at 136); see also Grosse Ile Bridge Co. v. American Steamship Co., 302 F.3d 616, 622 (6th Cir.2002) (“[Wjhere a- vessel at the time of a collision is in violation of a statutory or regulatory rule intended to prevent such a collision, the violation is presumed to be at least a contributory cause of the accident ... [and][t]o rebut this presumption, the vessel in violation of a rule must prove not only that the violation was not in fact the cause of the accident, but that the violation could not have been a cause of the accident.”) (emphasis in original) (internal citations omitted). Accordingly, once it is shown that either party violated one of the applicable rules, the burden shifts to the violator of that rule to show that its violation could not have been the cause of the accident. In addition, proportional division of liability applies to all admiralty cases. See, e.g., Phillips Petroleum Co. v. Stokes Oil Co., Inc., 863 F.2d 1250, 1255 (6th Cir.1988) (“Damages in admiralty cases are generally allocated among tortfeasors based on comparative fault.”). The Supreme Court has held that, although the damages assignable to the plaintiffs (or, as in this case, the decedent’s) own culpability must be subtracted from whatever damages the plaintiff has proven at trial, the defendant would still be liable “in full for the remainder,” even where a third party’s negligence contributed to the injuries. See Edmonds v. Compagnie Generate Transatlantique, 443 U.S. 256, 260, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979). The plaintiff has identified this state of affairs as an example of joint and several liability, although, as the defendant points out, this label is somewhat inapt: joint and several liability applies “where there has been a judgment against multiple defendants,” McDermott, Inc. v. AmClyde, 511 U.S. 202, 221, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994), whereas, in admiralty law, a defendant may be liable for the proportion of fault assignable to another culpable party who was not named as a defendant. See Edmonds, 443 U.S. at 273, n. 30, 99 S.Ct. 2753 (“[T]he general rule is that a person whose negligence is a substantial factor in the plaintiffs indivisible injury is entirely liable even if other factors concurred in causing the injury,” although, “[njormally, the chosen tortfeasor may seek contribution from another concurrent tortfeasor.”) Accordingly, the court must first determine whether the defendant’s negligence was a substantial cause of the decedent’s injury; if so, the court must allocate damages to the plaintiff in the amount of the total loss, minus the damages attributable to the plaintiffs own proportionate fault. Next, the court will determine whether the third-party defendant, Mr. Lawrence, committed any negligent acts that also substantially caused the decedent’s injuries and, if so, what proportion of the damages should be allocated to him. Finally, the court must determine liability and proportionate fault as it relates to Mr. and Mrs. Lawrence as counter-plaintiffs. A. Apportionment of Fault The court finds that Captain Ralls’ negligent operation of the Patricia H. was a substantial cause of the decedent’s injury. In fact, the court finds that Captain Ralls’ creation of an excessive wake was 100% responsible for the capsize of the fishing boat and the death of Mr. Matheny. Accordingly, the court also finds that Mr. Lawrence and Mr. Matheny were each 0% responsible for the accident. No set-off will be apportioned against Mr. Lawrence. 1. Captain Ralls’ Negligent Operation of the Tug The following Inland Rules of Navigation have been identified by the plaintiff as having been violated by the defendant: Rule 2(b), which provides that “[i]n 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;” Rule 5, which provides that “[ejvery 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;” Rule 6, which provides that “[e]very vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions;” Rule 7(a), which provides that “[e]very vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists;” and Rule 9(a)(i), which provides that “[a] vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable.” 33 U.S.C. §§ 2002, 2005-7, 2009. In addition, the plaintiff has identified 33 C.F.R. § 164.78 as providing an applicable standard of care that the defendant violated. 33 C.F.R. § 164.78(a)(7), which is one of the Federal Navigation Safety Regulations that have been promulgated by the Coast Guard, provides that “[t]he owner, master, or operator of each vessel towing shall ensure that each person directing and controlling the movement of the vessel ... [proceeds at a safe speed taking into account the weather, visibility, density of traffic, draft of tow, possibility of wake damage, speed and direction of the current, and local speed-limits.” However, as the defendant points out, this language expressly applies only to vessels in the act of towing. Not only does the regulation refer to “each vessel towing” as opposed to “each towing vessel,” but it also mandates that the speed of the vessel must take into account the “draft of tow,” which, of course, would not exist were the vessel not engaged in the act of towing. The defendant’s vessel, the Patricia H., was traveling “light boat,” or without a barge, and was not towing anything at the time in question. Therefore, this particular regulation does not apply to the case at hand. The court finds that Captain Ralls violated Rules 2(b) and 6 of the Inland Rules of Navigation by operating the Patricia H. at an excessive speed when it passed the fishing boat. Rule 2(b) requires that “due regard shall be had to all dangers of navigation and collision and to any special circumstances ... which may make a departure from these Rules necessary to avoid immediate danger.” The facts of this case demonstrate that Captain Ralls simply did not have due regard to the danger that his wake posed to Mr. Lawrence and Mr. Matheny. Although the exact speed of the Patricia H. and exact size of the tugboat’s wake cannot be determined, the facts of this case demonstrate that the speed was great enough to create a wake that was large enough to sink a nearby vessel. Far from taking action to avoid an immediate danger, the Patricia H. created an immediate danger to Mr. Lawrence’s fishing boat. The Patricia H.’s wake caused another vessel to capsize; therefore, Captain Ralls violated Rule 2(b) by failing to pay due regard to all dangers of navigation and collision to avoid immediate danger. Rule 6 of the Inland Rules of Navigation provides that each vessel “shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision.” The facts of this case demonstrate that Captain Ralls was not operating the Patricia H. at a safe speed, considering that the fishing boat was in a position such that it had to cross the Patricia H.’s wake. Once again, although the precise speed of the Patricia H. at the time in question remains unknown, it is known that the Patricia H. was going fast enough to create a wake that caused another boat to capsize. That is an unsafe speed. In addition, Captain Ralls was demonstrably unable to take proper and effective action to avoid collision, inasmuch as the fishing boat could not escape colliding with the Patricia H.’s wake. By operating the boat at a great enough speed to create a wake that swamped another boat, Captain Ralls violated Rule 6. Sufficient evidence was not presented at trial to demonstrate that Captain Ralls or TVA violated Rules 5, 7(a), or 9(a)(i) of the Inland Rules of Navigation. Rule 5 requires that each vessel must maintain a proper look-out by sight and hearing, and by all other appropriate means, in order to avoid collisions. Although, at the time of the accident, the deckhands were inside the cabin of the Patricia H., and were not on deck, this, in itself, does not demonstrate a violation of Rule 5. The uncontra-dicted testimony of Captain Ralls was that, when the Patricia H. was traveling “light boat,” it did not require lookouts because Captain Ralls’ vision was unobstructed. In fact, the evidence at trial demonstrated that Captain Ralls had no difficulty seeing the fishing boat. He saw it on his first trip to the group of downstream coal barges and, again, on the second trip. The accident occurred, not because Captain Ralls could not see the fishing boat, but because he operated the tugboat at an unsafe speed. Similarly, there was not sufficient evidence to demonstrate that the defendant did not “use all available means” to determine if a risk of collision existed, as required by Rule 7(a). The issue was not that Captain Ralls or his crew failed to use the appropriate means to determine whether the risk existed, but simply that, given the information that should have alerted them to a risk, they did not take the appropriate action of reducing speed. Or, put more simply, the evidence at trial did not suggest a failure of the information provided to Captain Ralls about his surroundings but, rather, a failure to act appropriately in light of that information. Captain Ralls saw the fishing boat and, accordingly, knew the position of that boat relative to his own. As an experienced tugboat captain, Captain Ralls should have been able to estimate his speed by consulting the.mile markers and should have known what size of wake was associated with that speed. Nevertheless, Captain Ralls’ wake capsized the boat. It was not a break in the means of information that caused this accident but merely Captain Ralls’ decision to maintain a certain speed. Finally, there was not sufficient evidence to find that the Patricia H. failed to “keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable,” as is required by Rule 9(a)(i). Of course, it is not only the size of the wake that caused the accident, but also the position of the boats. If the Patricia H. had been running at top speed several miles away from any other water craft, it would not have been creating an unsafe wake. However, no evidence at trial demonstrated that the Patricia H. could have approached the coal barge in question from a different position in the channel or that it was not as close to the outer limit of the channel as was safe and practicable. Although the proximity of the Patricia H. to the fishing boat was, along with the speed of the boat, a contributing factor to the accident, evidence did not show that it could have achieved its intended position from a different location. Accordingly, the court finds that Captain Ralls violated the speed requirement set forth in Rule 6, but not the “outer limit” requirement of Rule 9(a)(i). Under the rule announced in The Pennsylvania, 86 U.S. at 136, Captain Ralls’ violation of Rules 2(a) and 6 are presumed to be “at least a contributory cause of the accident,” and the burden shifts to the defendant to rebut this presumption by proving “not only that the violation was not in fact the cause of the accident, but that the violation could not have been a cause of the accident.” Grosse Ile Bridge Co. v. American Steamship Co., 302 F.3d at 622 (emphasis in original). The defendant has not met this burden. It is undisputed that, at the time of the accident, the water was calm and the weather was mild. Mr. Lawrence’s fishing boat was moving very slowly into the channel when Mr. Lawrence first saw the Patricia H. on its second trip. Mr. Lawrence soon realized that the tugboat’s wake would be a problem, so he tried, first, to outrun the wake and, second, to override it. But the fishing boat was swamped by the wake. Captain Ralls’ violations of Rules 2(a) and 6, by operating the boat at an excessive speed, caused the size of the wake. Therefore, not only is it the case that the violations could have been a cause of the accident, but, in fact, the evidence at trial demonstrated that the violations did cause the accident. Accordingly, the defendant has not met his burden under The Pennsylvania rule, and the presumption of causation remains in favor of the plaintiff. 2. The “Last Clear Chance” Doctrine The parties agree that the last clear chance doctrine generally applies to wrongful death actions in admiralty, although the plaintiff argues that it cannot apply in the present case because the decedent was not himself the pilot. This does not answer the question, however, of how exactly the doctrine applies within the proportional division of liability regime in admiralty actions. In such actions, courts have applied the doctrine in conjunction with the requirement of proximate causation; however, they have not applied it to bar liability where proximate cause was not in question. See Matter of Crounse Corp., 956 F.Supp. 1392, 1396 (W.D.Tenn.1996) (“Sofec differentiates between the proximate causality of supervening cause or last clear chance, and the discarded remains of supervening cause or last clear chance in their ameliorative utilities.”) (citing Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996)). In Sofec, the Supreme Court adopted Professor Schoenbaum’s explanation that “[t]he doctrine of superseding cause is ... applied where the defendant’s negligence in fact substantially contributed to the plaintiffs injury, but the injury was actually brought about by a later cause of independent origin that was not foreseeable.” Sofec, 517 U.S. at 837, 116 S.Ct. 1813 (quoting 1 T. Schoenbaum, Admiralty and Maritime Law § 5-3, p. 165-66 (2d ed.1994)). In this way, “[T]he superseding cause doctrine can be reconciled with comparative negligence” because “it operates to cut off the liability of an admittedly negligent defendant, and there is properly no apportionment of comparative fault where there is an absence of proximate causation.” Id. That is, the last clear chance doctrine applies only insomuch as it is defined as a bar to liability when a superseding event has destroyed the proximate causation for the preceding negligent act. It is not enough, under this formulation, for the defendant to point to some negligent act or omission that occurred after the defendant’s chief negligent acts. Instead, the defendant must show that the subsequent act or omission was (1) of independent origin and (2) not foreseeable. See Stolt Achievement, Ltd. v. Dredge B.E. LINDHOLM, 447 F.3d 360, 368-69 (5th Cir.2006) (holding that the Sofec rule could not preclude liability where “all of the negligent acts occurred within a very small window of time”). The plaintiff does not cite any support for her contention that the last clear chance doctrine cannot apply because the decedent was not himself operating a vessel. In light of the formulation adopted by the Supreme Court — that this doctrine is merely a corollary of the proximate cause requirement — there is no real justification for such a limitation. Under Sofec, the last clear chance doctrine remains in force only because it prevents liability where the chain of causation has become overly tenuous. See In re Kinsman Transit Co., 338 F.2d 708, 722 (2d Cir.1964) (Friendly, J.) (“[Tjhere must be a terminus somewhere, short of eternity, at which the second party becomes responsible in lieu of the first.”). This rationale applies equally whether it is the plaintiff or some other party — or, indeed, a force of nature — that committed the superseding act. Nevertheless, the last clear chance doctrine does not apply to the case at hand because no act or omission of the decedent or the pilot of the vessel (Mr. Lawrence) or any other person or force that contributed to the decedent’s drowning was both (1) independent in origin from the defendant’s acts and (2) unforeseeable to the defendant. The relevant actions committed by Mr. Lawrence in this case — assuming that his fishing boat was in the position that the defendants allege — are that he tied his boat off to a skimmer wall, fished there for a time, then untied it and began to move, slowly, into the channel. At this point, Mr. Lawrence first encountered the Patricia H. Surmising that the wake would overwhelm his boat, Mr. Lawrence tried to outrun it, but he could not because there was not sufficient room. So he turned back to face the wake, which — as he was afraid it might — overwhelmed his boat. It was not negligent for Mr. Lawrence to fish with his boat tied to the skimmer wall, and it was not negligent for him to decide to move away from the skimmer wall, never having seen the Patricia H. passing by on its first trip. Even if the court were to find that the actions that Mr. Lawrence took in response to the unsafe wake created by the Patricia H were negligent, they would neither have been (1) independent in origin from Captain Ralls’ acts or (2) unforeseeable to Captain Ralls. Actions taken in direct response to a danger cannot be said to be independent of that danger. To the contrary, the origin of Mr. Lawrence’s actions attempting to avoid and, later, to withstand the wake is found directly in the creation of the wake by Captain Ralls’ tugboat. Similarly, it cannot be said that the actions that Mr. Lawrence took in his attempt to avoid the wake were unforeseeable to Captain Ralls. If a person creates a hazard to another person, it is quite foreseeable that this hazard will inspire actions taken to avoid it. Evidence at trial indicated that both outrunning a wake and facing the wake directly to ride over it are common strategies for overcoming such hazards. For instance, Captain Stoller testified that it was proper for Mr. Lawrence to steer into the wake to attempt to ride over it. In addition, James Stanley, an avid fisherman, testified that the only way to withstand a heavy wake, aside from outrunning it, is to face the wake at a perpendicular angle and ride over it. No witness contradicted this testimony. Accordingly, Captain Ralls should have expected that Mr. Lawrence would try either to outrun or ride over the wake that the Patricia H. created. Finally, because the court finds that Mr. Lawrence’s boat was in proper working condition and not overloaded, the boat’s condition cannot have been an act or omission that contributed to the accident. However, it is important to note that, even if the boat had been in poor condition or had been overloaded, Captain Ralls would have been able to observe this condition from his position in the tugboat by noting how low the fishing boat was sitting in the water. If, as the defendant alleges, the space between the boat’s outer and inner hull had been waterlogged or did not contain the proper amount of flotation material, the Phantom would have been riding low in the water. Captain Ralls, however, testified both that he was able to observe how low the boat was riding and that it was not, in fact, riding low in the water. This testimony leads the court to conclude both that the condition of the boat was not defective and that, even if it had been, the condition would not have been unforeseeable to Captain Ralls, since he could observe how the boat was sitting in the water from his tower. Accordingly, the last clear chance doctrine does not act to bar the defendant’s liability for Captain Ralls’ negligence. 3. The Failed Rescue The defendant has identified 46 U.S.C. § 2303(a)(1) as providing the applicable standard of care for the claims arising from its alleged failure to adequately rescue the decedent, whereas the plaintiff has identified 46 U.S.C. § 2304. The first provision, 46 U.S.C. § 2303(a)(1), provides that “[t]he master or individual in charge of a vessel involved in a marine casualty shall ... render necessary assistance to each individual affected to save that affected individual from danger caused by the marine casualty, so far as the master or individual in charge can do so without serious danger to the master’s or individual’s vessel or to individuals on board.” The second provision, 46 U.S.C. § 2304, provides: “[a] master or individual in charge of a vessel shall render assistance to any individual found at sea in danger of being lost, so far as the master or individual in charge can do so without serious danger to the master’s or individual’s vessel or individuals on board.” It appears that 46 U.S.C. § 2303(a)(1), which refers specifically to a person in charge of “a vessel involv