Lawyer-type people, especially TU

[Frozen Sooner]

I single out TU simply because having been in NOLA he's probably familiar with maritime stuff.

I got into a disagreement with an instructor a week or so back. We were discussing USL&H and Jones Act requirements, and she gave a definition of "navigable water" that I disagreed with.

Her definition: "Any body of water connected to the Pacific or Atlantic Oceans."

My definition: "Any body of water that is either subject to tidal activity or can be used for the transport of interstate commerce."

A quick Googling shows that I'm right-however, are there some common law rulings I don't know about that affect this that would make her correct? She's somewhat an expert on Work Comp and related issues, so I would usually take her word for it on USL&H and Jones Act stuff.

[jk the sooner fan]

there may be a legal definition and a non legal one.......might have something to do with maritime jurisdiction, as the waters that border the United States.....

just a guess

[Frozen Sooner]

Understood. And it may seem like I'm splitting hairs. However, there are a few cases where Jones and USL&H would apply under my definition and not under hers. While Lake Tahoe isn't likely to come up during my work week, there are several rivers in Alaska that do not empty into either the Pacific or Atlantic yet are used for interstate/international commerce.

[SoonerInFla]

I just asked one of the pilots where I work and he disagreed with both of your definitions. He said the stipulations requiring interstate commerce or any particular ocean in the definition must have been acquired by a special interest group. We put pilots on ships navigating the Mississippi River 24/7 and it doesn't empty into the Pacific or Atlantic. The only requirements for a body of water to be navigable are that it be deep and wide enough to provide passage for vessels. Also, a body of water may have tidal activity and not be navigable.

[TUSooner]

I just asked one of the pilots where I work and he disagreed with both of your definitions. He said the stipulations requiring interstate commerce or any particular ocean in the definition must have been acquired by a special interest group. We put pilots on ships navigating the Mississippi River 24/7 and it doesn't empty into the Pacific or Atlantic. The only requirements for a body of water to be navigable are that it be deep and wide enough to provide passage for vessels. Also, a body of water may have tidal activity and not be navigable.
Being many years removed from my maritime law studies, I believe SoonerInFla's definition is correct. As I recall, the definition, particularly for the Longshore Act and the Jones Act, is very broad. Some of the older, narrower, definitions - like the "tidal activity" one - come from England back in the day where there was a real problem with competing and overlapping jurisidiction between the Courts of Admiralty and Courts of Equity and so on. Homey might have some of that old law history still fresh in his mind. Or as one old propfessor used to say - with slight exaggeration - "If it's wet, it's admiralty."

[Okla-homey]

From Black's Law Dictionary:


navigable water.

1. At early common law, any body of water affected by the ebb and flow of the tide. • This test was first adopted in England because most of England's in-fact navigable waters are influenced by the tide, unlike the large inland rivers that are capable of supporting commerce in the United States. -- Also termed boatable water. [Cases: Navigable Waters 1. C.J.S. Navigable Waters § 1.]

"In addition to its bearing on admiralty jurisdictional inquiries, the navigable waters issue comes up in cases involving the scope of Congress's regulatory authority under the commerce clause; the validity and interpretation of a variety of statutes and regulations administered by the Coast Guard; the powers of the Corps of Engineers over waterways, dams, marinas, etc., under the Rivers & Harbors Act and other statutes; the Federal Power Commission's authority to inspect and license electricity-generating dams; the existence and exercise of a servitude of navigation, which affects both public access to waterways on private land and governmental regulatory authority over such waters; and disputes over the ownership of stream beds. The foregoing is not an exhaustive listing. Well over a thousand federal statutes use the term 'navigable waters.' " David W. Robertson, Steven F. Friedell & Michael F. Sturley, Admiralty and Maritime Law in the United States 53 n.1 (2001).

2. (usu. pl.) A body of water that is used, or typically can be used, as a highway for commerce with ordinary modes of trade and travel on water. • Under the Commerce Clause, Congress has broad jurisdiction over all navigable waters of the United States. [Cases: Navigable Waters 1. C.J.S. Navigable Waters § 1.]

"navigable water of the United States." Navigable water that alone -- or in combination with other waters -- forms a continuous highway for commerce with other states or foreign countries.

[AlbqSooner]

Some enterprising lawyers in Mississippi a number of years ago tried, unsuccessfully, to get Mississippi casino employees brought under the Jones Act. The Jones Act is essentially workers comp for maritime employees, i.e. people who work on commercial vessels.

There is also an important "navigable waters" case out of Arkansas in the early '80s which attempted, unsuccessfully, to bring the Mulberry River under the navigable waters provisions. Been a long time since I have looked into Maritime Law, but those two cases address the outer limits of the jurisdiction fairly well.

[Frozen Sooner]

Thanks, all.

I'm rather surprised to find that the Mississippi doesn't empty into the Atlantic, though. I thought the Gulf of Mexico was part of the Atlantic.

[BeetDigger]

Thanks, all.

I'm rather surprised to find that the Mississippi doesn't empty into the Atlantic, though. I thought the Gulf of Mexico was part of the Atlantic.


Actually, it dumps into NOLA. That's why they haven't rebuilt.

[Frozen Sooner]

Good point.

[Frozen Sooner]

K, so Homey it looks like I was right and should go dance on the grave of my instructor.

[Okla-homey]

K, so Homey it looks like I was right and should go dance on the grave of my instructor.

It would appear so to moi. The cases are all over the place, but a rule of thumb seems to emerge that if a water course can float commercial traffic which can make it to the deep blue sea, its navigable water.

[Frozen Sooner]

I would argue that it wouldn't even need to be able to make it to the sea. Lake Tahoe carries interstate commerce, and to my knowledge has no connection to the sea.

[Okla-homey]

I would argue that it wouldn't even need to be able to make it to the sea. Lake Tahoe carries interstate commerce, and to my knowledge has no connection to the sea.

What kind of interstate commerce happens on Lake Tahoe? Do they have ferries that gamblers between CA and NV or something?

[Frozen Sooner]

Man, do you know how broadly SCOTUS has defined "interstate commerce" in the past?

But yeah, I think they do have boats that launch from CA and go out in the middle of the lake for gambling.

[Okla-homey]

Man, do you know how broadly SCOTUS has defined "interstate commerce" in the past?



Yes indeedy I do. I recently suffered an entire semester reading about a hundred pages a week under a very good con law prof. In fact, the whole constitutional notion of smuggling in law from other substantive areas under the rubric of the interstate commerce clause got rolling during FDR's "New Deal."

That said, this navigation dealio is much older and is more in keeping with originalist thinking, although I think one could make a colorable argument that gambling excursions on Lake Tahoe which originate and terminate in the same state on a body of freshwater which is well and truly landlocked don't cut the constitutional mustard.

But it has given me a fine idea. I think some Oklahoma tribe should build a big old showboat type thing to ply the waters of Lake Texoma and have full-on Vegas style gambling aboard. They'd make heap big wampum.:D

[TUSooner]

Although I'd have to do some real legal research to be sure (and I don't plan to do it) I think Froz's broader view is more corrector. I don't think a waterway has to connect to an ocean to be navigable and useful for interstate commerce. JMHO.

[Okla-homey]

Although I'd have to do some real legal research to be sure (and I don't plan to do it) I think Froz's broader view is more corrector. I don't think a waterway has to connect to an ocean to be navigable and useful for interstate commerce. JMHO.

In the end, it doesn't matter much anyway. As we know, the Supreme's make up their collective mind on an issue, then write the opinion to justify it. If anyone could reliably predict Supreme Court outcomes based on the words in the Constitution or even precedent...that guy could get rich.:D