Full opinion text
FRANK A. KAUFMAN, District Judge. Late in the afternoon of December 15, 1967 the Silver Bridge, spanning the Ohio River from Point Pleasant, West Virginia to Gallipolis, Ohio, collapsed. Thirty-one automobiles fell into the river; forty-six persons died and others were injured. As a result, fifty-six suits were filed in the United States District Courts for the Districts of West Virginia, Ohio and Maryland. In those fifty-six cases, one or more of the following parties were named as defendants: United States Steel Corporation, J. E. Greiner Co., and certain of its predecessors and successors (known as the “Greiner” defendants), the State of Ohio, and the United States of America. In only fifteen of those cases was the United States named as a defendant. Two of those fifteen cases are duplicates of two other cases. All fifteen involve wrongful death actions. A few of the original fifty-six suits were brought to recover damages for loss of property. Jurisdiction exists pursuant to 28 U.S.C. § 1332, except with regard to the claims against the United States in connection with which jurisdiction is present under 28 U.S.C. § 1346(b). On April 20, 1970 and subsequent thereto, acting pursuant to 28 U.S.C. § 1407, the Judicial Panel for Multidistrict Litigation transferred the cases from the Southern District of Ohio and the District of Maryland to the Southern District of West Virginia, and together with Chief Judge Haynsworth of the United States Court of Appeals for the Fourth Circuit, designated the undersigned to sit in that district as the section 1407 transferee judge. In re Silver Bridge Disaster, 311 F.Supp. 1345 (Jud.Pan.Mult.Lit.1970). On November 16, 1973, all of the claims of the plaintiffs against United States Steel and the “Greiner” defendants were settled, thus disposing entirely of forty-one of the fifty-six cases. At this time, only the claims against the United States Government in the remaining fifteen cases are pending. All of those cases were instituted in the Southern District of Ohio. Plaintiffs base their claims against the United States Government upon three theories: (1) federal approval of the bridge’s design and construction (“Issue I”); (2) activities of the United States in and around the Ohio and Kanawha Rivers between 1927 and 1967 (“Issue II”); and (3) the 1952-1954 Ohio River Crossings Survey (“Issue III”). ISSUE I A. The Factual Background Sometime prior to March 1926 the Gallia County Ohio River Bridge Company (hereinafter “Bridge Company”), an Ohio corporation, was incorporated for the purpose of constructing a toll bridge across the Ohio River between Gallipolis, Ohio and Point Pleasant, West Virginia. The Bridge Act of 1906 (currently codified with modifications as 33 U.S.C. § 491 et seq., however, requires, inter alia, congressional consent to construction of any bridge over navigable waters of the United States. In March, 1926 two bills were introduced in the Congress to permit construction by the Bridge Company of the Silver Bridge. Senate Bill 3499 made consent conditional upon approval by the Secretary of War and the Chief of Engineers of the War Department, of the plans and specifications, including the determination that the plans be “ * * * also satisfactory from the standpoint of volume and weight of the traffic which will pass over it.” In contrast, House Bill 10169 simply granted consent to build “in accordance-with the provisions” of the Bridge Act of 1906. On March 16, 1926, Acting Secretary of War, Mac Nider, informed the House Commerce Committee that the War Department had no objection to the House Bill. As to the Senate Bill, Secretary Davis wrote on March 20, 1926 to Senator Jones of the Senate Commerce Committee stating that if the War Department was to be required to approve such bridges from the standpoint of weight and volume of traffic, the same would pose substantially greater duties and work upon that Department. Eventually, Congress simply enacted consent legislation drafted in conformity with a standard form previously developed by the House and Senate Commerce committees for just such bills. Among other things the Act as enacted permitted the Bridge Company to build “at a point suitable to the interests of navigation between a point at\ or near Gallipolis * * * ”, and granted congressional consent “in accordance with the provisions” of the Bridge Act of 1906. The special consent as finally passed contained no explicit condition concerning the capacity of the Silver Bridge from the standpoint of volume or weight of traffic, nor did it otherwise refer to construction except in the context of construction costs as they related to the fixing of tolls and condemnation rights by the States. In December 1926, after the statute’s enactment, the District Engineer of the Corps of Engineers of the War Department (hereinafter District Engineer) furnished Form 92b entitled “Application for Approval of Plans of a Bridge to Cross Navigable Waters of the United States”. Although Form 92b did not require submission of the Bridge’s specifications, it did request submission by the Bridge Company of proposed plans to the extent stated in paragraph 3 of the form. That paragraph provides: (a) A map showing the proposed location, and the waterway for the distance of 1 mile above and 1 mile below, with the data necessary to enable the Chief of Engineers and the Secretary of War to determine whether the location is a proper one; also an inset sketch or a small scale map showing the general location of the bridge relative to towns in the vicinity and the position of the waterway relative to other waterways of the region. (b) Plan of the bridge showing the length and height of spans; width of draw openings; position of piers, abutments, fenders, etc., and those features which affect navigation, giving on both horizontal sections and elevations, the outside structure lines separating the area left for navigation from the area occupied by the bridge, and, in figures, the least clear width of openings at right angles to the axis of the channel, also the least clear heights with reference to water surfaces as specified on the reverse side of this sheet. Instructions on the reverse side of the application include the following: (e) STRUCTURAL DETAILS. — Only those should be shown which are needed to illustrate the effect of the proposed structure on navigation. . On December 29, 1926, the Bridge Company submitted the construction plans on Form 92b to the District Engineer who in turn forwarded the application and plans to the Chief of Engineers of the Corps, through the Division Engineer. Less than a week later the Division Engineer recommended to the Corps that a Board of Officers be appointed to consider the application. The board which was subsequently convened held a public hearing, and thereafter notified the Corps that the applicant had agreed to move one of the piers forty feet toward the Ohio shore, and that the board recommended approval of the plans as so amended. The amended application then spiraled its way up through government offices until it reached the Secretary of War, who granted the necessary approval. On April 28, 1927, the contractor for the Bridge Company, the American Bridge Company, (hereinafter “American”) seeking a permit for construction in navigable waters, sent the District Engineer tracings showing the location of the piers and box type cofferdams to go around them. Those plans did not conform to the plans previously approved by the Secretary of War and the Chief of Engineers. For that reason, no permit issued pending receipt of revised plans. On May 2, 1927 the contractor submitted plans conforming with the officially approved plans, and a week later the Division Engineer approved the permit on the recommendation of the District Engineer. Soon thereafter, a new District Engineer was appointed who requested a set of plans and specifications for the bridge. In response, the consulting engineers (Greiner) for the Bridge Company, sent the District Engineer a set of plans and specifications. The latter, in accordance with the approved plan, called for a straight wire cable design for the superstructure, but however also included two alternatives for the superstructure in the place of the wire cable design, i. e., (1) a long lay wire rope cable, and (2) heat treated I-bars (sometimes written as “eye-bars”). In a letter accompanying those plans, the consulting engineers wrote the District Engineer as follows: In accordance with your request we are sending you a set of plans and specifications for the Point Pleasant Highway Bridge. The cable design calls for a straight wire cable. In asking for bids on the superstructure two alternatives to this, namely, a long lay wire rope cable or heat treated I-bars may be bid upon. We expect to have these bids in within a short time, after which the type of cable will be decided upon and we will forward you additional plans covering this part of the work. This bridge is designed with a 22' roadway and a 5'6" sidewalk with provision in the future, if traffic demands it, for changing the sidewalk, placing it on brackets outside the stiffening truss, thus increasing the floor width sufficient to provide for three lanes of traffic. The bridge is designed for American Society of Civil Engineers H15 loading except that the uniform load used in the design of girders and trusses is increased 50 #, making it 1400 # per lineal foot, and a 42,000 # concentrated load instead of 63,000 #, is used. We believe that the two lane bridge as it is being constructed will provide adequately for the volume of traffic using it for many years to come, and that the necessity of moving the sidewalk outside of the stiffening trusses to provide three lanes on the floor for highway traffic is many years in the future. You will find in the specifications on pages 4 to 7, inclusive, a complete description of the unit stresses, etc., used in designing the various parts of the bridge. We respectfully request approval of the Secretary of War and Chief of Engineers of this bridge as being adequate for the volume and weight of traffic that will use it. The District Engineer responded: Receipt is acknowledged of your letter of the 15th inst., and specifications and set of plans, making request for approval of those plans and specifications for bridge over Ohio River at Mt. Pleasant, W. Va., with reference to their adequacy for the volume and weight of traffic that will use it. It is found that no approval of these plans and specifications by the War Department is needed. The original bill provided to Congress for authority for the construction of this bridge (S. 3499 69th Congress, First Session) contained this requirement: “Provided that such bridge shall not be constructed or commenced until the plans and specifications thereof shall have been submitted to and approved by the Secretary of War and the Chief of Engineers as being also satisfactory from the standpoint of the volume and weight of the traffic that will pass over it.” The bill as finally enacted however (H.R. 10169, approved May 13, 1926) does not contain this requirement. The specifications and plans submitted by you are returned herewith. Subsequent to that exchange of correspondence the Bridge Company contracted with American as general contractor to build a superstructure using I-bars instead of wire cables, and accordingly drew new plans accommodating that change. Apparently, neither the new plans containing the I-bar design, nor any subsequent revision of those plans, were ever submitted to the Secretary of War or to the Chief of Engineers. During the course of the construction of the substructure of the bridge the District Engineer allowed deviation from the approved plans by permitting the raising of the top of the Ohio shore caisson from 510 to 518 feet. The District Engineer also permitted dumping in the Ohio River of material resulting from the substructure’s erection; and had his staff inspect to determine the elevation of both the piers and the bottom of the steel section of the bridge. In November 1927 American was ready to commence the erection of the superstructure, and informed the District Engineer of its proposed method of constructing the superstructure. The District Engineer, while approving the proposal in principle, reserved the right to require American “to make any changes in the method of erection if found necessary for the safety and convenience of navigation.” He further required that American notify a number of “river interests” of American’s “proposed operations in the river.” The superstructure was erected from about December 1927 to June 1928. On June 21, 1928 the District Engineer caused the bridge to be inspected for clearances by an inspector. The latter informed the District Engineer that the vertical clearance one hundred feet out from the channel pier was 101.9 feet above low water rather than the planned 102.1 feet — a difference of 0.2 feet, and that further “[t]he channel span Horiz. [horizontal] clearance was found to be 700' feet center to center piers, which checks with approved plans.” The following day, the District Engineer wrote the Chief of Engineers as follows: The conditions of permit issued by the Acting Chief of Engineers and The Assistant Secretary of War under dates of March 1, 1927 and March 4, 1927, respectively, E.D. 6371 (Gallia Co. O. R. Br. Co.-O.R.) 11/29, to the Gallia County Ohio River Bridge Company of Gallipolis, Ohio, to construct a bridge across the Ohio River at Point Pleasant, W. Va., have been fully complied with and the work completed in substantial accordance with the approved plans. For a period of three years after completion of the bridge on May 19, 1928, the Secretary of War, pursuant to the consent legislation of May 13, 1926, conducted exhaustive investigations into the cost of the construction of the bridge, and audited the records of the Bridge Company and the consulting engineers. In May 1931 the Secretary of War made a final finding disallowing $90,249.04 of the claimed cost of the bridge which, as set forth supra, was relevant to setting of tolls and possible future condemnation. B. Contentions of the Parties Plaintiffs assert on the basis of that history that the District Engineer, the Chief of Engineers and the Secretary of the Army should have (a) required the submission for approval of plans, specifications and drawings which were more complete and which would have disclosed in greater detail the safety of the superstructure design, and the ability of the bridge to handle weights and volumes of traffic; (b) considered and determined safety as an independent element; (c) examined specially the I-bar suspension superstructure when and after' the Bridge Company adopted plans for the use of the same; (d) more fully supervised construction of the bridge, including any deviations from the approved plans; (e) employed more qualified assistants in connection with the examination of plans, specifications and drawings; (f) provided an adequate method of testing and inspecting the bridge during and after construction; (g) warned the public, including plaintiffs’ decedents, that the Secretary of the Army and the Chief of Engineers had not approved the final plans and specifications and that there were risks and dangers in the existence and the use of the bridge. Moreover, plaintiffs assert that the District Engineer without authority unlawfully and negligently permitted deviation from the approved plans in the construction of the bridge, especially in permitting the I-bar type of superstructure. Finally, plaintiffs contend that the Government’s action made the bridge a public nuisance. Defendant takes the position that (1) even if any of plaintiff’s contentions are meritorious, plaintiff’s claims are barred because the Federal Tort Claims Act does apply retroactively beyond January 1, 1945; (2) whether or not defendant fully met the requirements of the Bridge Act of 1906, the Government owed no duty to plaintiffs to avoid negligence; (3) the Federal Tort Claims Act does not allow an action in nuisance against the United States; (4) the actions of the Secretary of War, the Chief of Engineers and the District Engineer were discretionary and thus within the exception established by 28 U.S.C. § 2680(a); and in any event (5) the Government was not in fact negligent. C. Retroactivity When Congress enacted the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (hereinafter “FTCA”), it explicitly provided in 28 U.S.C. § 1346(b) for retroactivity to January 1, 1945. The negligent acts of the United States alleged by plaintiffs in Issue I, in connection with the construction of the Silver Bridge, all took place between 1926 and 1928 — long before the FTCA went into effect. Additionally, many of the acts alleged in Issue II, or which may relate to the type of questions involved in Issue III, took place prior to 1945. Accordingly, the United States Government asserts that all contentions based upon pre-January 1, 1945 negligent acts or omissions are barred regardless of when the injury occurred. Carnes v. United States, 186 F.2d 648 (10th Cir. 1951), also involved a pre1945 negligent act giving rise to a later injury. The Tenth Circuit rejected the Government’s contention that the United States had not waived immunity for such claims. The Carnes litigation grew out of the crash of a B-24 airplane near Birmingham, Alabama on March 24, 1944. Although the United States guarded the crash site while the plane’s remainders were salvaged, plaintiff, a fourteen-year-old boy, slipped through the cordon and picked up an airplane part labeled “Destructor”. Nearly a year later, on February 25, 1945, while plaintiff experimented with the destructor, it exploded. In holding the plaintiff’s claim actionable, the Court noted (at 650.): Appellant did not have a claim against the Government until he suffered injury upon which he could have predicated an action in court. It will be noted that the Act [28 U.S.C. § 1346(b)] gives the court jurisdiction of actions on claims (emphasis ours) accruing on or after January 1, 1945. The claim accrued, if at all, on February 2, 1945, when appellant was injured. Prior to that time he had no claim againt the Government. He could not have sued the Government. His cause of action, if any he had, accrued on the date he suffered his injury. Under the clear language of the Act, the court had jurisdiction of the cause of action predicated upon this claim. In pertinent part, 28 U.S.C. § 1346(b) provides: * * * [T]he district courts * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. [Emphasis added.] It is the Government’s position that in enacting section 1346(b) Congress meant not only to block claims for injury accruing before January 1945, but also claims accruing after that date caused by negligent acts or omissions before 1945. “* * * [W]e must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used. •» * * ” Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). The meaning expressed by “claim” on the one hand, and by “act or omission” on the other, is ordinarily quite distinct. In Richards, supra, the Court faced an analogous problem: whether Congress, in requiring application to FTC A cases of the law of the place where the “act or omission” occurred, intended to distinguish the locus of the act from the locus of that act’s operative effect, when the act and effect transpired in different jurisdictions. The Court held that Congress meant “act or omission” when it said “act or omission”. If Congress had intended to bar claims for injuries suffered after 1945 as a result of pre-1945 acts, it could have transposed the following words “on and after January 1, 1945” so that section 1346(b) would have provided for claims against the United States for money damages caused by a negligent or wrongful act occurring on and after January 1, 1945. It is especially appropriate in construing the FTCA to apply the general canon of statutory construction that the Congress said what it intended and intended what it said. “Whatever may be the case with legislation on other subjects, there is every reason to suppose that this particular statute was the result of the most skillful and deliberate draftsmanship and that in its final form it was the culmination of years of patient effort.” Niagara Fire Ins. Co. v. United States, 76 F.Supp. 850, 854 (S.D.N.Y.1948) (Medina, J.). Accordingly, plaintiffs are entitled to go forward in this case with regard to all claims which accrued after the year 1944. Whether a claim accrues is a matter of state law as incorporated through section 1346(b) ; however, when a claim accrues is apparently a question of federal law. See Kossick v. United States, 330 F.2d 933 (2d Cir. 1964); Quinton v. United States, 304 F.2d 234 (5th Cir. 1962); Maryland (Use of Burkhardt) v. United States, 165 F.2d 869 (4th Cir. 1947), all so holding with respect to the term “claim accrues” as it is used in the FTCA’s statute of limitations, 28 U.S.C. § 2401. Contra, Tessier v. United States, 269 F. 2d 305, 308, 309 (1st Cir. 1959). That fine distinction, however, presents no difficulty here. Regardless of the law resorted to, it is clear that until negligence has an impact which results or will result in injury, no actionable claim exists. That proposition is hornbook law in all states. W. Prosser, Law of Torts § 30, pp. 143-44 (4th ed. 1971). In Howard v. United Fuel Co., 248 F.Supp. 527 (S. D.W.Va.1955), for example, plaintiff was injured in 1963 by the explosion of a gas line. The explosion resulted from negligent installation sometime between 1953 and 1955. The Court, applying West Virginia law, held that limitations did not begin to run when the line was installed, since no right of action for personal injury came into being until the injury occurred. Similarly in applying the FTCA’s statute of limitations, the federal courts have held that an actionable claim does not accrue merely upon the occurrence of negligent mis- of non-feasance without or before impact or injury to anyone or anything. In United States v. Reid, 251 F.2d 691, 694 (5th Cir. 1958), Judge Brown wrote in the context of the FTCA’s statute of limitations: “ * * * Ordinarily there is a coincidence of negligent act and the fact of some damage. Where that occurs the cause of action comes into being * * * * [I]t is not the wrongful, i. e., negligent act, which gives rise to the claim. For there must be some damage caused by it. Until there is some damage, there is no claim * * (Emphasis in original.) Moreover, with respect to plaintiff’s allegation that defendant violated its duty to warn the public, such failure to perform that duty — assuming arguendo only that there was such a duty— would be continuous up through the time the bridge collapsed. See, e. g., Trombley v. Kolts, 29 Cal.App.2d 699, 85 P.2d 541 (Dist.Co.App. of Calif.1938). In sum, section 1346(b) does not bar any of plaintiff’s claims since they arose in 1967 at the time the bridge collapsed. Terminal Ry. Ass’n v. United States, 182 F.2d 149 (8th Cir. 1950); Perry v. United States, 170 F.2d 844 (6th Cir. 1948) ; and Oahu Ry. & Land Co. v. United States, 73 F.Supp. 707 (D.Hawaii 1947) — all eases relied upon by the Government — do not compel a different result. In Oahu and Terminal, plaintiffs sought indemnity from the United States. In each case the claim of the person injured accrued before 1945, but the plaintiff’s contribution or indemnity claim apparently accrued after 1944. Even if those claims for indemnity, as such, did not arise at the time of the injury and thus when the underlying claim arose, those cases may at least be distinguished as not involving claims for “ * * * money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death * * * ” (Emphasis supplied.) 28 U.S.C. § 1346(b). In Percy, supra, plaintiff suffered injury as a minor in 1943, but sued in 1947, asserting that no claim had accrued for the period from 1943 to 1947 because he was then under the disability of being a minor. The state statute establishing that disability did so with respect to the state’s limitation provision. The Court not only found that statute inapplicable to the determination of when a claim accrued under the FTCA, but further held that that claim accrued in 1943. As already noted, no claim accrued in the within cases until 1967. The Government argues that rejection of the Government’s limitations approach will open the floodgates to stale claims. However, the Tenth Circuit’s prior rejection of that view in Carnes, the only reported case containing a holding on the issue, stands as mute rebuttal to that argument. D. Choice of Law Section 1346(b) requires that tort liability be determined “ * * * in accordance with the law of the place where the act or omission occurred.” (Emphasis supplied.) Accordingly, when mis- or non-feasance takes place in one jurisdiction, and the impact and injury in another, the FTCA compels application of the law of the place of the original act or omission. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). In that case an airplane en route from Oklahoma to New York crashed, allegedly as a result of a negligent act in Oklahoma. In construing section 1346 (b)’s choice of law requirement, Mr. Chief Justice Warren (369 U.S. at 9-10, 82 S.Ct. at 591) rejected the contention “that Congress intended the words ‘act or omission’ to refer to the place where the negligence had its operative effect * * * ”, and held instead that the statute required application of the law of the place of the negligent breach. Moreover, Richards holds that the law of the place includes that forum’s choice of law principles. In this case, plaintiffs urge a path which they contend would slip through choice-of-law problems: they urge that the Silver Bridge disaster was a maritime tort, and that therefore admiralty law applies regardless of what state law is applicable. However, plaintiffs’ assertion that admiralty principles govern as to Issue I cannot prevail. Although it is uncertain whether either the alleged negligent acts or omissions and/or the impact and injuries occurred on navigable waters, nevertheless, even if the tort wholly occurred on navigable waters, there is lacking herein the necessary “maritime nexus” to qualify the same as a maritime tort. See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). In Executive Jet, the Supreme Court jettisoned the strict locality test in aviation tort eases, in favor of a maritime nexus test. That case involved property damage, (there were no deaths or injuries) caused by the crash of an aircraft into Lake Erie immediately after it took off from a land airport in Cleveland en route to Maine and New York. The Court noted that prior applications of the strict locality test had resulted on occasion in excluding matters obviously maritime and in including matters clearly not maritime. After indicating that past precedents did not absolutely mandate the strict locality rule as the whole or exclusive test, the Court adopted a functional view, holding (at 270-271, 93 S.Ct. 493) that airplane crashes in navigable waters within the continental United States lacked “such a relationship to traditional maritime activity as to justify the invocation of admiralty.” Executive Jet, as Chief Judge Haynsworth indicated in Crosson v. Vance, 484 F.2d 840 (4th Cir. 1973), leaves unanswered a number of questions. While in Executive Jet the Court did not hold that “maritime nexus” had become the new test for all maritime torts, it certainly appears to have left open to the lower federal courts the possibility of considering the application of that rule to other torts at the borderline. That invitation would seem to have been accepted in, for example, Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), and Oppen v. Aetna Ins. Co., 485 F.2d 252 (9th Cir. 1973). In Adams v. Harris County, 452 F.2d 994 (5th Cir. 1971), cert. denied, 406 U. S. 968, 92 S.Ct. 2414, 32 L.Ed.2d 667 (1972), a motorcyclist was hurt when a drawbridge was raised to permit a pleasure vessel to pass. The Fifth Circuit, writing in a pre-Executive Jet setting and noting the absence of allegations of negligence by the vessc’, held that the tort was not maritime in nature since the negligent acts and the injuries both occurred on an extension of land. In this case, the persons injured were not performing maritime functions or roles; the automobiles and trucks and the bridge were not maritime instrumentalities ; nor were the causes — alleged in Issue I — of the injuries maritime, although death or injury may well have been ultimately caused by the impact of hitting the Ohio River or drowning in it. Cf. Kelly v. Smith, supra; Hark v. Antilles Airboats, Inc., 355 F.Supp. 683 (D.V.I.1973). Plaintiffs seize upon the Government’s position that defendant’s sole or primary interest in the Silver Bridge under the Bridge Act of 1906 was an interest in navigation, and further point out that the bridge’s collapse had an impact on navigation and commerce in the Ohio River. Whatever might be the defendant’s relationship or potential liability to those engaged in navigation or maritime activity, plaintiffs do not fall within that group. If maritime services or industries or pleasure activities were involved, the rules governing conduct and liability that admiralty law has developed to accommodate the peculiar nature of those activities might be appropriate. See generally Peytavin v. Gov’t Employees Ins. Co., 453 F.2d 1121 (5th Cir. 1972) ; Chapman v. Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967); Higginbotham v. Mobil Oil Corp., 357 F.Supp. 1164 (W.D.La.1973); Rubin v. Power Authority, 356 F.Supp. 1169 (S. D.N.Y.1973). However, sincé the common law and wrongful death statutes which supplement it have developed rules of liability particularly appropriate in cases involving death or injuries to users of roadways, overpasses and bridges over non-navigable water, there is little or no need for resort to admiralty principles in a case such as this. Compare Crosson v. Vance, supra, with Oppen v. Aetna Ins. Co., supra. Even if, in this ease, the alleged failures to examine, test, supervise or the like occurred in navigable waters, rather than on the bridge itself, or far away from the bridge such as, for instance, in the District of Columbia, the location of such act or omission may well have been entirely fortuitous. Similarly, if plaintiffs’ decedents’ injuries did occur in the water rather than on land, that, too, is to some extent the result of chance since parts of the bridge in both of its ends ran over land and since also the break up of the bridge itself could have caused death or injury to a plaintiff on the bridge structure before the plaintiff fell from that structure. Moreover, apart from fortuity, if one but not all elements of the tort in this case occurred in the river, then this case is just the type of case which caused the Supreme Court to jettison the strict locality test in Executive Jet. See Executive Jet Aviation, Inc. v. City of Cleveland, supra. See also Chapman v. Grosse Pointe Farms, supra. Thus, the case may be one of the “ * * * perverse and casuistic borderline situations that have demonstrated some of the problems with the locality test of maritime tort jurisdiction.” Executive Jet Aviation, Inc., supra at 255, 93 S.Ct. at 498. In Executive Jet, the Court acknowledged (at 271-272, 93 S.Ct. 249) that a matter might be held to fall within admiralty, if holding otherwise might re-suit in serious problems of choice of law, and quoted (at 272 n. 23), the following passage from 7A J. Moore, Federal Practice, Admiralty ¶ 330 [5], p. 3774 (2d ed. 1972): * * * Were the maritime law not applicable, it is argued that the recovery would depend upon a confusing consideration of what substantive law to apply, i. e., the law of the forum, the law of the place where each decedent purchased his ticket, the law of the place where the plane took off, or, perhaps, the law of the point of destination. * * * In the instant situation the failure to apply the substantive principles of admiralty law does result in choice of law problems. However, because the substantive legal principles of each of the jurisdictions whose laws may be applicable herein are not in conflict in their application in this case, those difficult conflicts questions can be largely disregarded. Further, the choice of law problems here are not produced by applying Executive Jet to remove from the mantle of admiralty a matter that was once thought to be governed by admiralty law; nor do they result from any gap in federal statutes. Rather, the choice of law problems spring in this case from a choice by the Congress to have the liability of the United States for its torts determinable under the differing laws of the various states. In sum, admiralty principles of law will not be applied herein. Accordingly, it is necessary to return to Richards, supra, to determine what law to apply. In the case at bar, the acts or omissions occurred in two or possibly three locations. With respect to the Secretary of War and the Chief of Engineers, they probably took place in the District of Columbia. The Secretary’s letter to Senator Jones regarding his understanding of the scope of his department’s duties under the Bridge Act of 1906, the drafting and sending of Form 92b and the approval of the Bridge Company’s application transpired in Washington. The acts or omissions of the District Engineer and his subordinate apparently took place in Ohio and/or West Virginia. Responsibility for the Silver Bridge was assigned to the District Engineer’s office in Huntington, West Virginia. The letter from the District Engineer, quoted supra at p. 938, to the consulting engineers informing them of the limited scope of the District Engineer’s duties apparently was sent from that Huntington, West Virginia office. Nevertheless, with respect to such allegedly omitted acts as further supervision and testing, the acts, had they taken place, would have probably occurred on or near the Silver Bridge, that is, in West Virginia and Ohio. It would appear, therefore, that this Court, pursuant to Richards, should look to the law of the State of West Virginia, the State of Ohio or the District of Columbia. The parties are unable to ascertain the precise locus of the initial impact of the Silver Bridge’s collapse on one or more or all of plaintiffs’ decedents in relation to the Ohio-West Virginia boundary. The parties have, however, stipulated, based on the recovery pattern of the vehicles, that four of plaintiffs’ decedents died on the West Virginia side of the Ohio River, while the remainder died in Ohio. The District of Columbia has adopted an interest analysis approach to choice of law. Dovell v. Arundel Supply Corp., 361 F.2d 543, 544 (D.C.Cir. 1966); Williams v. Rawlings Truck Lines, 357 F.2d 581 (D.C.Cir. 1965); Tramontana v. S. A. Empresa de Viaeao Aerea Rio Grandense, 350 F.2d 468 (D.C.Cir. 1965), cert. denied, 383 U.S. 493, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966). In Tramontana, plaintiff’s decedent, a resident of Maryland, was killed in Brazil when defendant's airplane collided with the plane on which Tramontana was traveling. The defendant was a Brazilian corporation having its principal place of business in Brazil, but carrying on activities throughout the world. In deciding to apply Brazilian law on limitation of damages, the Court stated (at 471): The interest underlying the application of Brazilian law seems to us to outweigh any interest of the District of Columbia. Not only is Brazil the scene of the fatal collision, but Varig is a Brazilian corporation which, as a national airline, is an object of concern in terms of national policy. To Brazil, the success of this enterprise is a matter not only of pride and commercial well-being, but perhaps even of national security. The limitation on recovery against airlines operating in Brazil was enacted in the early days of commercial aviation, no doubt with a view toward protecting what was then, and still is, an infant industry of extraordinary public and national importance. The Brazilian limitation in terms applies only to airplane accidents, unlike the Massachusetts provision rejected in Kilberg, which was an across-the-board ceiling on recovery for wrongful death in that state. The focus of Brazilian concern could hardly be clearer. [Footnote omitted.] The Court then distinguished Kilberg v. Northeast Air Lines, 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), pointing out that after plaintiff Kilberg, a citizen of New York, boarded defendant’s plane in New York, the state in which the injury occurred was fortuitous. Thus, if District of Columbia law governs herein, the tracking of that analysis leads to application of Ohio and/or West Virginia tort law. Defendant in this case could be said to have its “principal place of business” in the District of Columbia — the locus of the Secretary’s and Chief of Engineer’s acts and omissions. The actions of defendant’s employees have, however, an impact throughout the United States. In Tramontana, Brazil legislatively evinced a desire to have Varig’s activities governed by Brazilian law. In contrast, Congress foreswore having the tortious acts of government employees measured by a single standard. Rather Congress subjected governmental torts to the standards of various state laws. Herein, West Virginia and Ohio have substantial interests in applying their tort law since the acts predictably impacted within their jurisdictions, and since eight of plaintiffs’ decedents resided in Ohio, and four in West Virginia. See Roscoe v. Roscoe, 379 F.2d 94 (D.C.Cir.1967); Edmunds v. Edmunds, 353 F.Supp. 287 (D.D.C.1972). Cf. Tramontana, supra at 473-475. It would be somewhat difficult to determine whether District of Columbia law would choose to apply West Virginia or Ohio law. Fortunately, there is no need so to select since there seemingly exists no material conflict between the laws of those two jurisdictions with respect to the liability issues discussed infra. With respect to the alleged acts and omissions of the District Engineer, West Virginia would apply the law of West Virginia to those of plaintiffs’ decedents dying in that state, and Ohio law to those dying in Ohio. West Virginia applies the rule of lex locus delicti. Chase v. Greyhound Lines, Inc., 195 S.E.2d 810 (Sup.Ct.App.W.Va.1973); Schade v. Smith, 117 W.Va. 703, 188 S.E. 114 (Sup.Ct.App.W.Va.1936); Dallas v. Whitney, 118 W.Va. 106, 188 S.E. 766 (Sup.Ct.App.W.Va.1936). Ohio has adopted a form of interest analysis as its choice of law standard in certain personal injury actions, Schiltz v. Meyer, 29 Ohio St.2d 169, 280 N.E.2d 925 (1972); Seeley v. Expert, Inc., 26 Ohio St.2d 61, 269 N.E.2d 121 (1971); Fox v. Morrison Motor Freight, 25 Ohio St.2d 193, 267 N.E.2d 405 (1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2254, 29 L.Ed.2d 710 (1972); See Goranson v. Capital Air Lines, Inc., 345 F.2d 750 (6th Cir. 1965), cert. denied, 382 U.S. 984, 86 S.Ct. 560, 15 L.Ed.2d 473 (1966); and apparently would apply Ohio law with respect to plaintiffs’ decedents who perished in Ohio and West Virginia law, insofar as liability is concerned, to those dying in West Virginia. Thus, as to liability, West Virginia and Ohio choice of law principles would for differing reasons cause the same substantive law to govern as to each of plaintiffs herein. E. Duty under Common Law As previously noted, plaintiffs premise many of their allegations of negligence on a contention that the Secretary of War, the Chief of Engineers and the District Engineer failed to act with regard to the safety of travelers over the bridge by omitting, for example (1) to consider travelers’ safety when approving the submitted plans; (2) to require further submission of plans, sufficient to pass on the bridge’s safety for travelers; (3) to consider subsequently the safety of the “I-bar” suspension superstructure when, after the grant of approval, the Bridge Company proffered alternative design plans for that superstructure; and (4) to inspect or supervise the bridge for its safety to travelers. For the purposes of summary judgment, this Court will assume to the extent not already so stipulated that defendant did fail to take those actions. To prevail with respect to those alleged failures, plaintiffs must show that the Bridge Act of 1906 and the subsequent Consent Act imposed a duty running in favor of travelers using the bridge. Negligence is only actionable when injury results from breach of a duty that defendant owes plaintiff. Chadwick v. Air Reduction Co., 239 F. Supp. 247, 249 (N.D.Ohio 1965); Crab Orchard Improvement Co. v. Chesapeake & O. Ry. Co., 33 F.Supp. 580 (S.D.W. Va.), aff’d, 115 F.2d 277 (4th Cir. 1940); Faull v. Abbott, 137 W.Va. 777, 73 S.E.2d 727 (Sup.Ct.App.W.Va.1952); Cooper v. Roose, 151 Ohio St. 316, 85 N.E.2d 545 (1949). See Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931). “This duty, to constitute the foundation of an action, may exist by virtue of the pronouncements of the common law, by legislative enactment, by operation of law, by express or implied provision of contract, or may result from the relation to the parties.” 39 Ohio Jur.2d § 13 at p. 499. Absent the Bridge Act of 1906, the United States would not have had any duty to inspect or otherwise approve the bridge plans. Plaintiffs assert, however, that once having undertaken such a course of action pursuant to that statute, the United States is necessarily liable, perhaps as a Good Samaritan, for negligent mis- or non-performance. See, e. g., Indian Towing v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 100 L. Ed. 48 (1955). Voluntarily undertaking to perform a certain course of action, however, does not impose a duty on the actor to perform those or further actions, unless there is an additional factor, e. g., reliance, special knowledge, control or injury caused in some way beyond mere failure to confer the benefit. Without those factors, it might even be that if the 1906 Act required the Government to undertake to act specifically for the safety of travelers over the bridge, no liability would flow from nonperformance. See, e. g., Lacey v. United States, 98 F.Supp. 219 (D.Mass.1951). Since this Court holds, as discussed infra, that the Government undertook to inspect and approve the Silver Bridge either to protect its own interests or to confer a benefit on a class of persons other than plaintiffs, e. g., persons using the Ohio River for navigation, neither the law of Ohio nor West Virginia, in the absence of the factors of reliance, special knowledge, control or special injury, imposed on the United States the additional duty to inspect and approve for the benefit of persons traveling over the bridge. Lemley v. United States, 317 F.Supp. 350 (N.D.W.Va. 1970), aff’d per curiam, 455 F.2d 522 (4th Cir. 1971), for example, involved a fall from a scaffold causing injury to a construction worker who worked for a contractor under contract to the United States. In its contract with that contractor the United States included detailed safety standards, and reserved to itself the right to inspect the site for compliance with those standards. The District Court found that the United States Government inspector had failed to detect a defective scaffold and that the plaintiff’s injury was attributable to the defective scaffold. Nevertheless the Court held that under West Virginia law the Government was not required to exercise control over the contractor, and that the mere reservation of a right to inspect the work for compliance with the contract terms did not impose a duty to maintain safety conditions running in favor of the employee of the contractor. Reckman v. Keiter, 109 Ohio App. 81, 164 N.E.2d 448 (Ct.App.1959), illustrates Ohio’s application of the same principle. Plaintiff sued a sheriff who failed to ascertain the name of the driver of another vehicle involved in a collision with plaintiff. The Court noted an Ohio statute which required the sheriff to file written reports of collisions with the Ohio Director of Highway Safety, and which also permitted those involved in accidents to receive copies of such reports. In addition, the defendant’s deputy specifically assured the plaintiff’s passenger that he would secure the other driver’s name. The Court held that the statute only imposed on the sheriff a duty to the general public for the purpose of making safer highways. In rejecting the contention that the deputy’s statement to the passenger created a duty owed to the plaintiff, the Court adopted from 38 Am.Jur. 666, § 18 the statement that * * * [t]he decisions are substantially unanimous to the effect that it is not sufficient to show that the defendant owed to another person or class of persons a duty which, had it been performed, would have prevented the injury of which complaint is made by the plaintiff. This rule applies whether the duty is one imposed by the general principles of the common law or one imposed by statute. * * * The principle of Ohio law — that one who for his own benefit reserves the right to inspect, investigate or approve is not liable to another for failing to so act — was applied in Sayre v. United States, 282 F.Supp. 175 (N.D.Ohio 1967). There the trustee in bankruptcy of an urban renewal project sued under the FTCA claiming “that the defendant United States provided careless and inadequate supervision and inspection of the University-Euclid Urban Renewal Area Project and thereby permitted blight and decay to spread throughout the Hough project area.” Sayre, supra at 188. The Court held, however, (at 189) that: * * * the contract, between the United States Government and the City of Cleveland relating to the University-Euclid Urban Renewal Area Project, while providing for the right of government inspection of the project, was clearly only intended to benefit the Government in fulfilling its duty to see that federal funds are properly spent. This language of the contract imposes no duty of inspection, from which either an owner of property or other private person could derive a private right of action against the Government. [Emphasis added.] Ohio does impose liability on one who undertakes to inspect and service an instrumentality and to report to its owner regarding its condition. Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 139 N.E.2d 10 (1956). In such circumstances, the element of reliance and the undertaking to do specific acts for the benefit of an instrumentality’s owner led Ohio to find a duty to the owner’s employee. But that element and that undertaking are not present herein. Unless the Bridge Act of 1906 or the Consent Act of 1926 were designed to protect the safety of travelers using the bridge, neither West Virginia nor Ohio law would — simply because the United States undertook to inspect and approve —impose on the United States a duty running to plaintiffs’ decedents to inspect and approve the bridge for safety. F. Duty under the Federal Statutes The Federal Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq. requires, inter alia, that congressional consent must be obtained for construction of any bridge over navigable waters, and that the Secretary of War and Chief of Engineers must approve plans for any such bridge. The Bridge Act of 1906, 33 U.S.C. § 491 et seq., was subsequently enacted to standardize consent for such bridges: The purpose of the bill is to establish uniform regulations in regard to the construction and operation of bridges over navigable waters when hereafter authorized by Congress. A further purpose is to prevent the cumbering up of the statute books by repeating in each bridge bill the same provisions, and also to shorten the time for considering and reading bridge bills in the two Houses of Congress. Under the practice now in force the Committee on Interstate and Foreign Commerce of the House and the Committee on Commerce of the Senate, having jurisdiction of bridge bills, require the insertion in each bill of certain provisions. These provisions make the bill long, take up the time of the two Houses of Congress in the reading of them, and add to the length of the laws when enacted. The present bill gathers these provisions into one general law, so that hereinafter a bill to authorize the construction of a bridge may be in form similar to the following: A BILL to authorize John Doe Railroad Company to construct a bridge across the Richard Roe River, at or near Black Acre. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the John Doe Railroad Company, its successors and assigns, be, and they are hereby, authorized to construct, maintain, and operate a bridge across the Richard Roe River, at or near Black Acre, in the State of _, in accordance with the provisions of the act entitled “An act to regulate the construction of bridges over navigable waters, approved _ _, nineteen hundred and__” [Regulation of Construction of Bridges over Navigable Waters, Comm. Rep’t No. 182, House Comm, on Interstate & Foreign Commerce, 59th Cong., 1st Sess. 1906.] The 1906 Act provides in part— * * * [t]hat when, hereafter, authority is granted by Congress to any persons to construct and maintain a bridge across or over any of the navigable waters of the United States, such bridge shall not be built or commenced until the plans and specifications for its construction, together with such drawings of the proposed construction and such map of the proposed location as may be required for a full understanding of the subject, have been submitted to the Secretary of War and Chief of Engineers for their approval, nor until they shall have approved such plans and specifications and the location of such bridge and accessory works; and when the plans for any bridge to be constructed under the provisions of this Act have been approved by the Chief of Engineers and by the Secretary of War it shall not be lawful to deviate from such plans, either before or after completion of the structure, unless the modification of such plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of War. [33 U.S.C. § 491, 34 Stat. 85 (1906).] Section 4 of the Bridge Act, 33 U.S.C. § 494, further empowers the Secretary to require alterations of a bridge under certain circumstances: That no bridge erected or maintained under the provisions of this Act shall at any time unreasonably obstruct the free navigation of the waters over which it is constructed, and if any bridge erected in accordance with the provisions of this Act shall, in the opinion of the Secretary of War, at any time unreasonably obstruct such navigation, either on account of insufficient height,' width of span, or otherwise, or if there be difficulty in passing the draw opening or the drawspan of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the Secretary of War, after giving the parties interested reasonable opportunity' to be heard, to notify the persons owning or controlling such bridge to so alter the same as to render navigation through or under' it reasonably free, easy, and unobstructed, stating in such notice the changes required to be made, and prescribing in each case a reasonable time in which to make such changes, and if at the end of the time so specified the changes so required have not been made, the persons owning or controlling such bridge shall be deemed guilty of a violation of this Act; and all such alterations shall be made and all such obstructions shall be removed at the expense of the persons owning or operating said bridge. [33 U.S.C. § 494, 33 Stat. 85 (1906).] The legislation’s scope is clearly confined only to bridges over navigable waters. While that limitation does not itself negate the possibility that Congress intended to regulate or promote the safety of travelers on bridges, it does at least suggest that congressional concern with federal governmental involvement in bridge construction, as expressed by the 1906 Act, was triggered and existed only if navigational interests also came into play. In enacting the 1906 Act Congress was expressing an interest both in commerce and in navigation. To balance those interests with regard to bridges spanning navigable waters, Congress retained control over whether a particular bridge could be constructed. “A bridge spanning a navigable river is an obstruction to navigation tolerated because of necessity and convenience to commerce upon land * * *." Clement v. Metropolitan West Side El. Ry. Co., 123 F. 271, 273 (7th Cir. 1903). Thus, each consent act demonstrates concern for land commerce over and for navigation on navigable waters. That retention of consent by Congress does not indicate, however, any intent to involve the federal government in promoting the interests of such commerce beyond facilitating it by consenting to a bridge’s construction. Section 1 of the 1906 Act, 33 U.S.C. § 491, does not explicitly indicate what factors — navigation, tolls, safety, etc.— the Secretary of War and the Chief of Engineers should take into consideration in approving a bridge, but it does clearly devolve on them a requirement to consider the bridge plans. Some indication of what Congress desired the Secretary to consider, however, may be inferred from Section 4 of the Act, 33 U.S.C. § 494, which permits the Secretary to order alterations of that bridge only if it becomes an obstruction to navigation. See, e. g., United States v. Wauna Toll Bridge Co., 130 F.2d 855 (9th Cir. 1942). The Act further made provisions for safety of navigation, providing that “[t]he persons owning or operating any such bridge shall maintain, at their own expense, such lights and other signals thereon as the Secretary of Commerce and Labor shall prescribe. * * * ” 34 Stat. 85 (1906). See, e. g., Southern Ry. Co. v. Tennessee Valley Auth., 223 F.Supp. 1, 8 (E.D.Tenn.1963). It is clear, therefore, that Congress was explicitly concerned with avoiding obstruction to and safeguarding navigation, and provided for considerable governmental power to vouchsafe those interests. Congress also expressed concern with certain interests of users of bridges over navigable waters. The 1906 Act provides that any bridge built in accordance with that Act shall be a post route, and that no higher tolls may be charged for such use, or for use by the military, than are charged per mile by railroads, streetcars or highways in the area, 33 U.S.C. § 492; that the United States may maintain telephone and telegraph wires across any such bridge, id.; that all railroads shall have equal access to any railroad bridge; that the Secretary of War shall determine any rate disputes arising from such use, 33 U.S.C. § 493; and that the Secretary shall regulate the tolls charged for transit over the bridge to “ * * * engines, cars, street cars, wagons, carriages, vehicles, animals, foot passengers, or other passengers * * *.” That Congress in consenting to the construction of a bridge over navigable waters had an interest in providing for commerce over such a bridge and that Congress further determined to involve the Federal Government in the regulation and promotion of certain aspects of commerce, does not necessarily mean that Congress also intended to involve the United States in regulating the safety of the bridge for purposes of commerce. Congress specifically commanded the Secretary to prevent material obstruction to navigation and in that connection to provide lights and other specific attributes to promote navigation. Further, the detail with which Congress indicated its intent with respect to certain classes of users of the bridge, i. e., postal, military and railroad, with reference to tolls charged users, and the like, is to be noted. It is thus unlikely that Congress, in enacting the 1906 Act, and the Committee in reporting the Act, would not have been equally explicit with regard to the safety of commerce over the bridge, if there had been an intention to require the Secretary of War to regulate that matter as well. It also appears likely that if Congress had intended to require the Secretary to consider safety in approving the bridges, 33 U.S.C. § 491, it would also have empowered the Secretary to order alterations if and when safety problems arose. It should be noted in that connection that the Secretary had the power to lower unreasonable tolls as well as to cause alterations as and when required to promote and safeguard navigation. To the contrary, under 33 U.S.C. § 494, neither the Secretary of War nor the Chief of Engineers was expressly given the power to order alterations if a bridge’s surface caused users to slip or trip, or if a bridge railing became insufficient or unsteady, or if a problem developed in structural support — unless any of those factors also materially endangered navigation. In sum, it would not appear that the Secretary of War or the Chief of Engineers had either a duty or even a reservation of a right to impose safety standards — apart from navigational safety — on the owners or builders of a bridge subject to the Bridge Act of 1906. Congress reserved the power to alter the conditions of consent for any or all bridges subj'ect to the 1906 Act in section 8, 33 U.S.C. § 498. As stated by the House Committee Report: Of course Congress will have the authority in any special bill to put in special or general provisions, and that may properly be done when there arises some special occasion calling for the exercise of such authority. Comm.Rep’t No. 182, supra at p. 2. Accordingly, unless special conditions were imposed, each consent bill merely made the bridge involved subj'ect to the 1906 Act’s provisions. The consent bill for the Silver Bridge, however, did include additional provisions permitting the Secretary to audit the cost of construction, and to permit either Ohio or West Virginia to take the bridge by condemnation. Pub.L. No. 221, 44 Stat. 535, 536 §§ 4-6 (1926). As noted in this opinion, at p. 935, supra, S.B. 3499, granting consent to the Silver Bridge, required as a condition: “That such bridge shall not be constructed or commenced until the plans and specifications thereof shall have been submitted to and approved by the Secretary of War and the Chief of Engineers as being also satisfactory from the standpoint of the volume and weight of the traffic which will pass over it.” (Emphasis supplied.) Since the Bridge Act of 1906 was designed to include all but special additional or alternative conditions which Congress could, if it chose, embody in the consent bill applicable to each particular bridge, it would appear likely that the drafters of S.B. 3499 included the above italicized proviso because they believed the 1906 Act would not otherwise have required the Secretary and the Chief Engineer to address themselves to volume and weight of traffic or t