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. 
 ·         Hypos
 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.
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