Admiralty - "Navigable In Fact"

Although the law of 1789 essentially defined "navigable waters," (where admiralty law was to be made applicable,) as those "waters which are navigable from the sea by vessels of ten or more tons burthen," much confusion arose over the actual navigable capacity of many inland American waterways. In The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428, (1825,) Justice Story adopted the traditional restrictive English rule, confining admiralty jurisdiction to the high seas and upon rivers influenced by the ebb and flow of the tide.

However, in 5 Stat. 726 (1845,) Congress formally extended admiralty jurisdiction over the Great Lakes and connecting waters. In 1851, Chief Justice Taney in The Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, officially overturned the tidal ebb and flow requirement laid down in The Thomas Jefferson. Taney's ruling established the basis for subsequent judicial extension of admiralty jurisdiction to be applicable to all waters determined to be "navigable in fact."

Notation from Kaiser Aetna v. United States, 444 U.S. 164 (1979):

[Footnote 7] "Navigable water" subject to federal admiralty jurisdiction was defined as including waters that are navigable in fact in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443 (1852). See also, e. g., The Belfast, 7 Wall. 624 (1869). And in Ex parte Boyer, 109 U.S. 629 (1884), this Court held that such jurisdiction extended to artificial bodies of water:

"Navigable water situated as this canal is, used for the purposes for which it is used, a highway for commerce between ports and places in different States, carried on by vessels such as those in question here, is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a State, and subject to its ownership and control; and it makes no difference as to the jurisdiction of the district court that one or the other of the vessels was at the time of collision on a voyage from one place in the State of Illinois to another place in that State." Id., at 632."

In Escanaba & Lake Michigan Transp. Co, v. City of Chicago, 107 U.S. 678 (1883,) Justice Field stated:

"...The common-law test of the navigability of waters, that they are subject to the ebb and flow of the tide, grew out of the fact that in England there are no waters navigable in fact, or to any great extent, which are not also affected by the tide. That test has long since been discarded in this country. Vessels larger than any which existed in England when that test was established, now navigate rivers and inland lakes for more than a thousand miles beyond the reach of any tide. That test only becomes important when considering the rights of riparian owners to the bed of the stream, as in some states it governs in that matter."

Justice Field stated in Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387 (1892)

"The same doctrine is in this country held to be applicable to lands covered by fresh water in the Great Lakes, over which is conducted an extended commerce with different states and foreign nations. These lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide. In other respects they are inland seas...At one time the existence of tide waters was deemed essential in determining the admiralty jurisdiction of courts in England. That doctrine is now repudiated in this country as wholly inapplicable to our condition. In England the ebb and flow of the tide constitute the legal test of the navigability of waters. There no waters are navigable in fact, at least to any great extent, which are not subject to the tide. There, as said in the case of The Genesee Chief, 12 How. 443, 455, "tide water,' and 'navigable water' are synonymous terms, and 'tide water,' with a few small and unimportant exceptions, meant nothing more than public rivers, as contradistinguished from private ones;' and writers on the subject of admiralty jurisdiction 'took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the character of the river. Hence the establishes doctrine in England, that the admiralty jurisdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable waters.'

"But in this country the case is different. Some of our rivers are navigable for great distances above the flow of the tide,-indeed, for hundreds of miles,-by the largest vessels used in commerce. As said in the case cited: 'There is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is a public, navigable water, on which commerce is carried on between different states or nations, the reason for the jurisdiction is precisely the same, and, if a distinction is made on that account, it is merely arbitrary, without any foundation in reason, and, indeed, would seem to be inconsistent with it.'"