George v. Beavark, Inc.

• Decision Date: 12 November 1968
• Docket Number: No. 19175.,19175.
• Citation: 402 F.2d 977
• Parties: Luther GEORGE and Wife, Helen George, Appellants, v. BEAVARK, INC., and James Cypert, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

402 F.2d 977 (1968)

Luther GEORGE and Wife, Helen George, Appellants, v. BEAVARK, INC., and James Cypert, Appellees.

No. 19175.

United States Court of Appeals Eighth Circuit.

November 12, 1968.

Owen C. Pearce, Fort Smith, Ark., for appellants; David A. Stewart, Fort Smith, Ark., and Thomas R. Fox, Dallas, Tex., on the brief.

James W. Gallman, Fayetteville, Ark., for appellees; E. J. Ball, Fayetteville, Ark., and James Cypert, in pro. per., on the brief.

Before MATTHES, MEHAFFY and HEANEY, Circuit Judges.

MEHAFFY, Circuit Judge.

Luther George and Helen George, his wife, petitioned in the United States District Court for the Western District of Arkansas in admiralty for limitation of their liabilities under 46 U.S.C.A. § 185 and related federal statutes.¹

Petitioners were the owners of a 38-foot-long boat, the RIVER QUEEN, which was moored at the Hickory Creek Boat Dock on Beaver Lake, a man-made lake formed by the building of a dam on the upper reaches of the White River in Northwest Arkansas. The river in that area flows north from Beaver Lake in Arkansas across the Missouri line and then curls back into Arkansas. In the early morning of March 26, 1967, fire broke out on the RIVER QUEEN, virtually destroying it, and damaging the boat dock and other boats moored in adjacent slips of the dock.

By this petition in admiralty, petitioners seek to use the federal statutes to limit their liability to $510.00, the salvage value of the RIVER QUEEN.

If the river was navigable prior to construction of the dam, it continues to be considered as a navigable stream. United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 85 L.Ed. 243 (1940); Economy Light & Power Co. v. United States, 256 U.S. 113, 118, 41 S.Ct. 409, 65 L.Ed. 847 (1921).

The sole issue on this appeal is whether "float fishing" constitutes such commerce and transportation as to characterize the stream as navigable, thus affording petitioners the advantages of the federal statutes above referred to. As stated in petitioners' brief:

"We have made no claim in this case that White River has been navigated, and that commerce and transportation have existed on White River, in a manner comparable to that on the larger rivers of the country. We have claimed merely that there has been at least one significant type of commerce and transportation, namely float fishing. Actually, in this Record there is a suggestion of two other types of commerce and transportation, namely the floating of staves or logs (R. 42-43), and the business of trapping fur-bearing animals (R. 44); but the Record does not show them to be significant."

The case was tried to the district court upon answers to interrogatories, live testimony and stipulated evidence. The Honorable John E. Miller, a distinguished and experienced senior district judge, in a very thorough opinion published in 275 F.Supp. 403 under the title of In re River Queen dismissed the petition for lack of jurisdiction, and we affirm.

There is little or no factual dispute. Petitioners had leased dock space under an oral contract and after occurrence of the fire collected the insurance carried on the RIVER QUEEN and bought the salvage for the net sum of $510.00. Aside from the answers to the interrogatories, the evidence was elicited from fishing guides who each testified that at times he took parties during the fishing season on float trips lasting from one to seven days. They used what were described as old John or old river boats which were of light draft and flat bottomed, usually from 16 to 18 feet long, which would accommodate the guide and two persons and their gear. Of necessity this type boat was used because the river consisted of slow-moving deep holes interspersed by shallow water and shoals and, in fact, was negotiable only by these flat bottomed boats with a draw of from two to at most six inches of water, depending upon the load. No motors were used on the boats and while the guides would paddle over most of the shoals the stream was not such that a modern motor-propelled ski boat could be operated upon it. There is no history of the stream's being used commercially for hauling passengers or goods and no barges were ever seen on the river. The guides, of course, knew where the rapids and shoals were. Customarily, if the trip was an overnight one the fishing party would camp out on a gravel bar and in case of bad weather would sometimes erect a tent. There were also locations along the river where the float party could stop and be met by a car and trailer, enabling them to spend the night with more comfortable accommodations than on the river bank. If the trip continued, they could return and float the following day. They would eventually be met by someone in a car with a trailer or have one stationed where they knew they were going to put in and have need for it. There was no showing or claim that persons or regional products were ever transported commercially upon the river. Float fishing is nothing more than pleasure fishing and is conducted in much the same manner as game fishing in most any lake or stream, the main difference being that in a stream such as this a guide is necessary to negotiate the shoals, and the use of motorless flat bottomed boats such as described is necessary. Float fishing in this area is popular as it lends itself to a pleasurable as well as scenic adventure. Such pastime, however, standing alone is too fragile a basis to support a holding of legal navigability, absent any evidence of a channel of useful purpose to trade or commerce.

From time to time our admiralty laws have been liberalized to accommodate the needs and growth of our country. Always, however, there has existed a pragmatic reason which is nonexistent in the situation here. Originally, it was held, based on English common law, that admiralty jurisdiction was limited to navigable waters within the ebb and flow of the tide. The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428, 6 L.Ed. 328 (1825). This rule, however, was abandoned in The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851), where it was held that jurisdiction depended upon the navigable character of the water and not upon the ebb and flow of the tide. In the landmark case of The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1870), it was ruled that rivers are regarded as public navigable rivers in law which are navigable in fact, and that rivers are navigable in fact when they are used or 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. The rule was further liberalized in The Montello, 87 U.S. (20 Wall.) 430, 22 L.Ed. 391 (1874), to include rivers difficult to navigate because of obstructions, and this case placed emphasis upon the past history of rivers rather than the present nonnavigability and held that navigability does not depend upon the mode by which commerce is conducted upon it. It is significant, however, to note that the Court in this case stated at page 442:

"It is not, however, as Chief Justice Shaw said, Rowe v. Bridge Co., 21 Pickering, Mass., 344 `every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture.\'"

There is no real problem in arriving at a general definition of navigable waters. Petitioners cite the definition found in Guinn, An Analysis of Navigable Waters of the United States, 18 Baylor L.Rev. 559 (1966).²

The Supreme Court has often defined the test for navigability. In United States v. State of Utah, 283 U.S. 64, at page 76, 51 S.Ct. 438, 441, 75 L.Ed. 844 (1931), the Court expressed itself as follows:

"The test of

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