LeBlanc v. Cleveland, 2d Cir. 1999: Test for “Navigable Waters”
· Facts: Kayakers involved in a boat collision. The place where the collision occurred was north of many dams that were impassible. The issue is that there are rapids, dams and waterfalls in between the kayakers and a “navigable” waterway
· Issue: What is the definition of a navigable waters?
· Holding: (See test above for “navigability”)
· Reasoning: First definition of navigable waters was articulated in The Daniel Ball. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. For example a lake that stretches across two states would be considered navigable even though it is not connected to any other river, because you could carry goods from one state to another (“a continued highway over which commerce is or may be carried on with other states or foreign countries. As long as the river is susceptible of sustaining interstate commerce then it is considered navigable. If it can connect to a link in a chain with interstate or foreign commerce then that is sufficient. It also does not matter that the person be engaged in commerce at all.
1. What if there is a waterway blocked by a damn in which the little water that is let through trickles down to a river that crosses state boundaries?
a. If the incident happens in the trickle, after the dam, it would be considered navigable waterways.
b. If the accident happened in the area above the damn then state law applies and it is not considered navigable. You must look at the body of the water in its contemporary condition, not what the body of water used to be used for or what it might one day be used for.
2. What if a bunch of boulders fell and blocked the waterway after a sudden earthquake? What if the government has hired someone to remove those boulders?
a. Natural and artificial obstructions that effectively prohibit such commerce defeat navigability
b. You must distinguish between a temporary and permanent obstruction. If there is evidence that this is only a temporary obstruction because in six months the government will remove all the boulders. However, if the obstruction is more permanent like a cement structure then most likely will no longer be considered navigable.
c. The historic navigation argument has been rejected in LeBlanc. It all depends on the current situation of the waters and whether they are used for commerce now.
3. What if the body of water can be traversed by kayaks only?
a. A waterway is navigable provided that it is used or susceptible of being used as an artery of commerce. We are not concerned with the type of boats that are in the accident. We only concerned with the way in which the body of water is capable of being used. If the body of water can be used by a vessel of commerce then it is considered navigable no matter the vessel that is in the actual accident.
4. What if you could put the cargo on a truck to get around the obstruction?
a. No, any break in travel on the water destroys admiralty jurisdiction.
5. What if the body of water is not currently being used for commerce?
a. Yes, because we don’t want bodies of water to be navigable and not navigable depending on the time period.
b. Example of man-made waterway that is used by the government but that is shutdown half of the year and thus not presently being used for commerce.
6. What if something falls into the water as a result of an earthquake that prevent boats from using the waterway? Is it still considered navigable?a. It depends on whether this is considered a man-made dam or boulders. There is an argument that there is nothing to prevent it from being cleaned up and it was not done intentionally. The other side of the argument is that this is an equivalent of a damn and thus is permanent and immovable.