Finneseth v. Carter

• Decision Date: 12 July 1983
• Docket Number: No. 82-5020,82-5020
• Citation: 712 F.2d 1041
• Parties: Beverly A. FINNESETH, Administratrix of the Estate of Norris L. Finneseth, Deceased and Executrix of the Estate of Paul A. Finneseth, Deceased, Plaintiff-Appellant, v. Charles CARTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1041

712 F.2d 1041

1983 A.M.C. 2391

Beverly A. FINNESETH, Administratrix of the Estate of Norris L. Finneseth, Deceased and Executrix of the Estate of Paul A. Finneseth, Deceased Plaintiff-Appellant, v. Charles CARTER, Defendant-Appellee.

No. 82-5020.

United States Court of Appeals Sixth Circuit.

Argued March 31, 1983.

Decided July 12, 1983.

John E. Wise, Terry Weber, Joseph Hammer (argued), Louisville, Ky., Daniel M. Kininmonth (lead counsel), New Albany, Ind., for plaintiff-appellant.

August A. Klapheke, Louisville, Ky., for defendant-appellee.

Before KEITH, KENNEDY and JONES, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Appellant Finneseth appeals from a final order in this action seeking damages in connection with a boating accident dismissing her complaint insofar as it invoked the admiralty jurisdiction of the District Court under 28 U.S.C. § 1333(1); 46 U.S.C. § 740. The remainder of the complaint, predicated upon negligence and invoking the diversity jurisdiction of the District Court, remains before the District Court.

On April 10, 1979, two pleasure craft collided on Dale Hollow Lake killing appellant Finneseth's husband and son. Dale Hollow Lake lies in both Kentucky and Tennessee and was formed when the Army Corps of Engineers constructed a dam on the Obey River. The former riverbed of the Obey River laid entirely in Tennessee. When the dam was erected, however, the reservoir created extended upstream beyond the confluence of the Obey and Wolf Rivers. The former riverbed of the Wolf River meandered back and forth across the Kentucky-Tennessee state line. The reservoir thus has boundaries in both states. The boating accident occurred somewhere above the former riverbed of the Wolf River. It is unclear whether the accident occurred in Kentucky or Tennessee. At present Dale Hollow Lake supports seven to eleven commercial marinas. The only maritime traffic which presently operates on the lake is in the form of pleasure craft. The pleasure craft may traverse the lake between Kentucky and Tennessee but cannot go downstream beyond the dam because the dam is without locks. An official report by the Army Corps of Engineers, made pursuant to its regulatory authority under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401 et seq., indicated that the Obey River was navigable and historically navigated by flatboats, barges, log rafts, loose floating logs and steam and gasoline powered boats carrying minerals, naval stores, agricultural staples and forest products. The report indicated that the Wolf River was also navigable and historically navigated by loose floating logs. The record indicates that in "its present condition the Obey River could support, during all seasons, commercial navigation of the ordinary type ... on Dale Hollow Lake which extend from Mile 7.3 to Mile 58.2 on Obey River, Mile 10.0 on East Fork, Mile 6.0 on West Fork, and Mile 16.6 on Wolf River. Navigation on these streams is by recreational craft at present." App. 102, 113, Ex. A, "Determination of Navigability, Obey River and Tributaries." ¹ There are presently no restrictions against the use of the lake by individuals exploring for petroleum deposits located near the lake. The possibility of ferry service across the lake between Kentucky and Tennessee was not addressed.

On appellee Carter's motion, the District Court dismissed the complaint to the extent it invoked the court's admiralty jurisdiction on the ground that Dale Hollow Lake was not "navigable" within the meaning of 28 U.S.C. § 1333(1) and 46 U.S.C. § 740. The District Court found the lake to be non-navigable because it is not currently being used as an artery of commerce. Appellant Finneseth appeals this determination.

In Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), the Supreme Court indicated that the term "navigability," as used in past Supreme Court decisions, has been used to define four separate and distinct concepts: to delineate the boundaries to navigational servitude; to define the scope of Congress' regulatory authority under the Interstate Commerce Clause; to determine the extent of authority of the Army Corps of Engineers under the Rivers and Harbors Appropriation Act of 1899; and, to establish the limits of the jurisdiction of the federal courts conferred by Article III, § 2 of the United States Constitution over admiralty and maritime cases. Id. 171-72, 100 S.Ct. at 388.

In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court set forth the test for admiralty jurisdiction. Admiralty jurisdiction under 28 U.S.C. § 1333(1) and 46 U.S.C. § 740 exists if: (1) the alleged wrongful injury occurred upon navigable waters, and (2) the alleged acts or omissions of the defendants significantly relates to traditional maritime activity. Id. 249, 93 S.Ct. at 493. Accord, Foremost Insurance Co. v. Richardson, --- U.S. ----, ----, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982). Both appellant Finneseth and appellee Carter agree that the second requirement in Executive Jet is met in this case because the collision on Dale Hollow Lake involved the operation of two pleasure craft which may constitute traditional maritime activity. Foremost Insurance, supra (collision of two pleasure craft on navigable waters squarely within admiralty jurisdiction). At issue, then, is whether the first requirement, whether the alleged wrongful acts of appellee Carter occurred upon "navigable waters," is met in this case.

In The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871), the Supreme Court stated a definition of navigability for purposes of establishing admiralty jurisdiction. ²Those 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. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water (emphasis added).

Id. 563. In The Montello, 87 U.S. (20 Wall.) 430, 22 L.Ed. 391 (1874), the Supreme Court again addressed the definition of navigability in the admiralty context and stated:

[T]he true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation. * * * The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. (emphasis added).

Id. 441. Although The Daniel Ball defined "navigability in fact" as a water body's susceptibility for use as a highway of commerce in its ordinary condition, subsequent Supreme Court cases in the admiralty context have made it clear that an artificial water body is navigable in fact if it is used or susceptible for use as a highway of commerce. Ex Parte Boyer, 109 U.S. 629, 3 S.Ct. 434, 27 L.Ed. 1056 (1884) (Illinois and Michigan Canal); The Robert W. Parsons, 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73 (1903) (New York State Barge Canal); Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 52 S.Ct. 166, 76 L.Ed. 282 (1932) (New York States Barge Canal). See also United States v. Appalachian Electric Power Co., 311 U.S. 377, 408-09, 61 S.Ct. 291, 299-300, 85 L.Ed. 243 (1940) (applicability of Federal Power Act of 1920 under the Commerce Clause).

The principles to be distilled from the above-mentioned Supreme Court cases are that an artificial water body, such as a man-made reservoir, is navigable in fact for purposes of conferring admiralty jurisdiction if it is used or capable or susceptible of being used as an interstate highway for commerce over which trade or travel is or may be conducted in the customary modes of travel on water.

In this case Dale Hollow Lake clearly meets the requirement that the lake be an interstate highway for commerce because it straddles Kentucky and Tennessee. Because the interstate nexus is satisfied in this manner, it is not probative that maritime traffic on the lake is prevented from traveling downstream by the lockless dam. Two cases cited by appellee Carter, Chapman v. United States, 575 F.2d 147 (7th Cir.) (en banc), cert. denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978), and Adams v. Montana Power Co., 528 F.2d 437 (9th Cir.1975), are distinguishable from the case on appeal in that the reservoirs created by lockless dams were wholly within the confines of one state. Thus, the threshold requirement that the water body be available as an interstate highway of commerce was not satisfied.

Dale Hollow Lake also meets the requirement that it be used or capable or susceptible of being used for any trade or travel that is or may be conducted in the customary modes of trade or travel on water. Because of the liberal definition given to "customary modes of trade and travel on water," ³ and the fact that Dale Hollow Lake is currently suitable for maritime traffic by large pleasure craft, there is no evidence before the Court which indicates that Dale Hollow Lake is not susceptible or capable of being used for transportation and commerce between Kentucky and Tennessee, whatever the modes may be. In fact, the only evidence before the District Court regarding the present capability or susceptibility of Dale Hollow Lake for commercial maritime traffic indicates that Dale Hollow Lake can support commercial navigation of the ordinary...