dissenting.
I respectfully dissent. First, I disagree with the majority’s holding that Trinity River Authority’s (TRA) liability is limited to $100,000. Also, I oppose the majority’s employment of contributory negligence to reduce the damage award payable to Williams and Magaziner.
The majority rejects Williams' and Maga-ziner’s argument that maritime law controls this cause. The applicability of maritime law is significant because under maritime law, TRA’s liability is not limited to $100,000. The entire reasoning of the majority in this regard is: “[tjhis fact situation is within the terms of the Texas Tort Claims Act.” The question I am compelled to ask the majority is: why?
As the majority correctly notes, the court of appeals erroneously required a “traditional commercial maritime activity” for the application of maritime jurisdiction. Rather, maritime jurisdiction attaches when the activity involved occurs on a navigable waterway and has a “sufficient nexus to traditional maritime activity.” Foremost Insurance Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982). Here, there is no question that the Trinity River is a navigable waterway. Also, fishing and boating are the most traditional maritime activities. Thus, maritime law should apply. See Kohl v. United States, 712 F.2d 286 (7th Cir.1983) (maritime law governs the drowning of three fishermen near a lock and dam on the Mississippi River); Estate of Callas v. United States, 682 F.2d 613 (7th Cir.1982) (maritime law governs the drowning of two fishermen due to the dangerous back currents caused by the release of water at a dam); McCormick v. United States, 680 F.2d 345 (5th Cir.1982) (maritime law governs the collision of a pleasure boat with an unmarked piling in a navigable waterway).
Even though the majority concludes that the Texas Tort Claims Act controls this cause, they continue to analyze the effects of maritime law. The majority seems to hold that maritime law might apply; but even if it does, the Texas Tort Claims Act still would limit the amount of damages recoverable against TRA to $100,000. In my opinion, maritime law governs this cause entirely and it is not appropriate to apply a state law damage limitation to a properly pleaded and litigated federal cause of action.
The majority also reduces Williams’ and Magaziner’s damages based on a jury finding that they were negligent in entering the Trinity River under the circumstances. In so doing, the majority refuses to give effect to another jury finding that Williams and Magaziner did not know or should not have known of the dangerous back cur*888rents. I agree with the court of appeals analysis that one must either anticipate or have knowledge of the danger “before one can be held guilty of contributory negligence.” 659 S.W.2d at 725. Since the deaths were caused by the back currents resulting from the discharge of the water at the dam and TRA’s negligence in failing to maintain a floating cable across the surface of the river, I believe the fact that Williams and Magaziner neither knew, nor should have known of the danger precludes the application of contributory negligence to lower the damages award. In other words, how can someone be held responsible for failing to appreciate a risk that a jury found no reason for that person to realize or anticipate in the first place?
In conclusion, the court of appeals made but one error, that being its misapplication of maritime law to require a traditional commercial maritime activity to invoke maritime jurisdiction. The majority, however, dismisses that error and, without any reasoning, baldly asserts that the Texas Tort Claims Act applies to limit TRA’s liability. The majority further errs in reducing the damages awards of two people who did not know or should not have known of the invisible peril that would lead to their tragic deaths. This is a classic maritime lawsuit. Here, the TRA, while discharging water at a dam on a navigable waterway, negligently failed to perform its proprietary function of maintaining a cable across the river with warning signs to alert unsuspecting people of the hazardous back currents. Consequently, maritime law should govern this cause and Williams’ and Maga-ziner’s awards should not be reduced.