Chapman v. U.S.

• Decision Date: 19 October 1977
• Docket Number: Nos. 75-2162 and 75-2163,s. 75-2162 and 75-2163
• Citation: 575 F.2d 147
• Parties: Linda CHAPMAN, Plaintiff-Appellee and Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant and Cross-Appellee. . Reheard In Banc
• Court: U.S. Court of Appeals — Seventh Circuit

Page 147

575 F.2d 147

Linda CHAPMAN, Plaintiff-Appellee and Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant and Cross-Appellee.

Nos. 75-2162 and 75-2163.

United States Court of Appeals Seventh Circuit.

Reheard In Banc Oct. 19, 1977.

Decided May 1, 1978.

As Amended June 9, 1976.

David V. Hutchinson, Admiralty & Shipping Section, U. S. Dept. of Justice, Washington, D. C., for defendant-appellant and cross-appellee.

Leonard R. Grazian, Chicago, Ill., for plaintiff-appellee and cross-appellant.

Before FAIRCHILD, Chief Judge, CASTLE, Senior Circuit Judge, SWYGERT, CUMMINGS, PELL, SPRECHER, TONE, BAUER and WOOD, Circuit Judges.

TONE, Circuit Judge.

The issue on which this case turns, in the view of a majority of the court, is whether the federal admiralty jurisdiction extends to tort claims involving the operation of small pleasure boats over waters that, although navigable and used for commercial transportation in the past, are now used and likely to be used only for recreational activities. We hold that admiralty jurisdiction does not exist under these circumstances.

Murrell Chapman drowned in the Kankakee River when the small boat in which he was fishing swept over an unmarked submerged dam and capsized. His administrator sued the United States under the Suits in Admiralty Act, 46 U.S.C. § 741, et seq., contending that it had a duty to mark the dam, and recovered a judgment for $49,207 in a bench trial.

A panel of this court affirmed the judgment, with minor modifications, 541 F.2d 641 (1976), and confirmed that action in a later, revised version of the same opinion, which has not been published. We granted rehearing in banc and now reverse the judgment.

The dam in question lies between the left bank and an island at Wilmington, Illinois, where the river flows north. The United States did not build the dam and has never owned it, maintained it, marked it, or had any other connection with it. ¹ The City of Wilmington now owns the dam. The island on which the east end of the dam abuts is a public recreational park. Prior to the accident the dam was marked by barrels placed by the Wilmington Rotary Club, but these markings were not there when the accident occurred. Since the accident, the dam has been marked by buoys placed by the Illinois Department of Conservancy.

The Kankakee River, which joins with the Des Plaines to form the Illinois River a few miles downstream from Wilmington, was not a part of the waterway connecting Lake Michigan and the Mississippi River via the Illinois-Michigan Canal. ² Running from the Chicago River to the Illinois River at LaSalle, Illinois, the 96-mile canal was built under the authority of the State of Illinois. The right of way for the canal and additional land to be sold to raise money for construction were granted by Congress to the state in the 1820's, but construction was not commenced until 1836; the canal was completed in 1848. ³ It served as an artery of commerce for several decades but became obsolete long before the turn of the century and, according to the Encyclopaedia Britannica, has not been used since 1900. ⁴ The present Illinois Waterway parallels the old canal. ⁵

The only relationship the Kankakee River had with the Illinois-Michigan Canal was as a source of additional water. To collect the water and divert it to the canal, the state built a dam across the Kankakee a short distance below Wilmington and a feeder canal from that point to the Illinois-Michigan Canal.

There was once some commercial navigation on the Kankakee itself. In 1847 a private company was organized for the purpose of improving navigation and developing water power on that river. Pursuant to authority obtained from the state, the company proceeded to raise the state dam, built a lock in the feeder canal, and built four additional dams and locks, providing navigation for some distance above Wilmington. One of these four dams was the one involved in this case.

The Kankakee received some attention from Congress and some federal supervision. In 1878 and 1879 Congress appropriated money for study and improvements of the Kankakee. ⁶ In 1915 money was appropriated for flood protection along the river, with the federal government's participation to be based on "the value of protection to navigation." ⁷ At various times before 1931 Congress authorized construction across the Kankakee of bridges ⁸ and another dam, ⁹ and the Army Corps of Engineers issued permits authorizing installation of overhead wires and submarine cables across the river. In 1924 a power company filed with the Federal Power Commission a declaration of intent to build a dam and other works in the river, and the District Corps of Engineers recommended that the river be considered a navigable stream subject to the FPC's jurisdiction. During the same year the Secretary of War opposed a bill in Congress that would have declared the river to be nonnavigable for some 27 miles, which would include the Wilmington section. Congress did not adopt the bill. In 1932, however, the Corps of Engineers, acting through its Division Engineer, determined that this part of the Kankakee was not navigable, although the Division Engineer's subordinate, the District Engineer, had made a contrary recommendation.

After 1931 at the latest, no commercial vessels of any kind used the Kankakee River, and the federal government exercised no supervisory authority over it. Since that time the river has been used solely for recreational purposes. It is not now usable for commercial shipping.

I.

In Adams v. Montana Power Co., 528 F.2d 437 (1975), the Ninth Circuit held that the admiralty jurisdiction did not extend to a tort claim arising in waters "traversed by small pleasure craft only," where "no commercial shipping occurred or was likely to occur," id. at 440, notwithstanding that the waters were navigable for purposes of Congress' exercise of its powers under the commerce clause, id. We agree with that opinion and adopt its reasoning, including the following passages:

The logic of requiring commercial activity is evident. The purpose behind the grant of admiralty jurisdiction was the protection and the promotion of the maritime shipping industry through the development and application, by neutral federal courts, of a uniform and specialized body of federal law. . . . The strong federal interest in fostering commercial maritime activity outweighed the interest of any state in providing a forum and applying its own law to regulate conduct within its borders. It follows that admiralty jurisdiction need and should extend only to those waters traversed or susceptible of being traversed by commercial craft. In the absence of commercial activity, present or potential, there is no ascertainable federal interest justifying the frustration of legitimate state interests.

The damming of a previously navigable waterway by a state cannot divest Congress of its control over a potentially useful artery of commerce, since such obstructions may always be removed. Hence the courts have reasonably held that a navigable river is not rendered non-navigable by artificial obstruction.

However, if the damming of a waterway has the practical effect of eliminating commercial maritime activity, no federal interest is served by the exercise of admiralty jurisdiction over the events transpiring on that body of water, whether or not it was originally navigable. No purpose is served by application of a uniform body of federal law, on waters devoid of trade and commerce, to regulate the activities and resolve the disputes of pleasure boaters. . . . (T)he burdening of federal courts and the frustrating of the purposes of state tort law would be thereby served.

Id. at 439, 440-441 (citations and footnotes omitted).

The Adams decision is consistent with Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). In each of these cases the holding that admiralty jurisdiction did not exist, in Adams over waters unusable for commercial maritime activity and in Executive Jet over an aircraft accident unrelated to such activity although occurring in navigable waters, was based on the same principle, viz., that the reason for the existence of admiralty jurisdiction is to protect and promote commercial maritime activity through the development of a uniform federal maritime law. The Court in Executive Jet expressly confined its holding to aviation torts, 409 U.S. at 268, 274, 93 S.Ct. 493, but its reasoning is nevertheless instructive. In reaching the conclusion that the alleged wrong did not "bear a significant relationship to traditional maritime activity," id. at 268, 93 S.Ct. at 504, i. e., activity "involving navigation and commerce on navigable waters," id. at 272, 93 S.Ct. at 506, the Court pointed to the inappropriateness of applying to aircraft crash cases the rules developed in admiralty for traditional maritime disputes, id. at 269-271, 93 S.Ct. 493, and observed that the state courts "could plainly exercise jurisdiction over the suit, and could plainly apply familiar concepts of (state) tort law without any effect on maritime endeavors." Id. at 273, 93 S.Ct. at 507 (footnotes omitted). The same can be said of a claim arising out of a pleasure boat accident in waters used exclusively for recreational activities. ¹⁰

II.

The United States, as we have noted, has never had any connection with the dam in question. Even if it had, however, that would not give rise to admiralty jurisdiction, although jurisdiction and liability under the Federal Tort Claims Act might well exist. That Act is not invoked here. ¹¹

The panel of this court that originally heard this appeal rested its holdings as to both admiralty jurisdiction and liability upon federal land grants for the creation of the waterway in the 1820's and federal supervision over the waterway through the 1920's. Thus the panel, while expressing agreement in principle...