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maritime, and interstate commerce jurisdiction upon the general government, when they ratified and adopted the Constitution as a whole, and in defining this jurisdiction many decisions have interpreted the words “navigable waters of the United States.” But in these discussions upon the subject of the jurisdiction of the United States over navigable waters two entirely different lines of cases have developed. While the principles of both lines of decisions are clear, and while most of them fall clearly under one principle or the other, it is necessary, for the purposes of this motion, in considering the provisions of the law above set forth, to examine the derivation and development of each of these doctrines.

The provision of article 1, § 8, subsec. 3, of the Constitution, giving the United States jurisdiction over commerce with foreign nations and among the several states, is the basis of one of these lines of cases. Interstate and foreign commerce, as such, when conducted upon rivers, streams, or tidal water, by any kind of craft, is subject to federal regulation and control, and the limits of this jurisdiction and the tests of navigability depend on the possibility of carrying on such interstate commerce. This principle is well exemplified in the case of State of Pennsylvania v. Wheeling & Belmont Bridge Company, 59 U. S. 421, 15 L. Ed. 435. A bridge in that case, constructed over the Ohio river between the states of West Virginia and Ohio, was held to be within the control of legislation, from the power of regulating commerce among the several states conferred upon Congress by the Constitution:

“The regulation of commerce includes intercourse and navigation, and, of course, the power to determine what shall or shall not be deemed in judgment of law an obstruction to navigation.” State of Pennsylvania v. Wheeling & Belmont Bridge Co., supra.

Riparian rights and the interests of private individuals to the center of a stream, or to land under water, have been considered in many cases, under this general power to regulate interstate commerce, and in so doing to legislate with reference to the carrying on of such commerce by means of navigation. Various cases cited in this opinion, such as Leovy v. United States, 177 U. S. 621, 20 Sup. Ct. 797, 44 L. Ed. 914, Egan v. Hart, 165 U. S. 188, 17 Sup. Ct. 300, 41 L. Ed. 680, and others, depend for the test of navigability upon this possibility of interstate commerce.

In Leovy v. United States, supra, the subject is discussed at length. At page 628 of 177 U. S. and page 801 of 20 Sup. Ct. (44 L. Ed. 914), the court reviews the various definitions of "navigable waters” within the meaning of the statute above referred to.

The case of Egan v. Hart, supra, contains the following language, applicable in effect to the present situation:

“Between these two points it is nothing but a high-water outlet, going dry every summer at many places, choked with rafts and filled with sand, reefs, etc. It has no channel. In various localities it spreads out into shallow lakes and over a wide expanse of country, and is susceptible of being made navigable just as a ditch would be if it were dug deep and wide enough and kept supplied with a sufficiency of water."

In The Daniel Ball, 77 U. S. 557, 19 L. Ed. 999, it is said:

“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."

The Montello, 87 U. S. 430, 22 L. Ed. 391, contains the following:

“If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in iaw a public river or highway. Vessels of any kind that can float upon the water, whether propelled by animal power, by the wind, or by the agency of steam, are, or may become, the mode by which a vast commerce can be conducted, and it would be a mischievous rule that would exclude either in determining the navigability of a river."

In the report of the Leovy Case, supra, the charge of the trial judge to the jury is reviewed in detail; the case having originated upon an indictment under the criminal provisions of the statute. The Supreme Court of the United States holds that the possibility of working from one river to another, and from that river to still others, and by means of the different waters eventually to the ocean, is not the true test of the possibility of interstate commerce, nor of what is navigable water of the United States. In the opinion the court quotes from the charge of the trial judge:

"Nearly all the streams on which a skiff or small lugger can float discharge themselves into other streams or waters flowing into a river which traverses more than one state, and the mere capacity to pass in a boat of any size, however small, from one stream or rivulet to another, is sufficient to constitute navigable water of the United States."

But with this the Supreme Court disagrees, and comments as follows:

"Such a view would extend the paramount jurisdiction of the United States over all the flowing waters in the States. * * If such were the necessary construction of the statutes here involved, their validity might well be questioned. But we do not so understand the legislation of Congress."

The court further on in the Leovy Case cites with approval the following statement of Chief Justice Shaw of Massachusetts, in Rowe v. Granite Bridge Corporation, 21 Pick. 347:

“Very different was the view expressed by Chief Justice Shaw when he said it is not '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.'”

But the Supreme Court then says:

"Nor can it be contended that the Red Pass, at the time the dam was built, was open to the Gulf. It was shown that the Gulf end of the pass had closed up, so that to get to the sea it was necessary to go out of Red Pass into Tiger Pass, Tontine Pass, and Grand Pass, which are open to the Gulf."

The court ultimately held that the acts of Congress relating to the obstruction of navigable water, above referred to, are not intended to apply to the case of a stream of the history and character disclosed in the record of that case.

It is stated in all the cases heretofore cited that the question of navigability is one of fact, and in Egan v. Hart, supra, the court plainly takes into consideration only the character of the water course as a whole, and not the question whether navigation may be possible at the exact point, without reference to the conditions immediately above and below.

On the southern shore of Long Island the bays, inlets, and small streams communicating directly with the Atlantic Ocean necessarily possess one element of the standard of navigability, for purposes of interstate commerce, established by the various statutes and decisions. It is possible to pass from any of the sea coast states by means of the Atlantic Ocean to the entrance of these different bays and indentations. In most of them local as well as interstate commerce is actually carried on, to a greater or less degree. In some of them interstate commerce may be interrupted for a long period, or the use of the water may be almost entirely for pleasure purposes, but the possibility of access is ever present, and the question of use and capacity must be the test as to the extent of the jurisdiction of the United States under the interstate commerce provision of the Constitution.

The second line of cases arises from a different constitutional source of federal jurisdiction, under the interpretation of the words “admiralty and maritime jurisdiction.” “The judicial power shall extend

to all cases of admiralty and maritime jurisdiction.” Const. art. 3, § 2, subsec. 1. Section 563 of the United States Revised Statutes, subdivision 8 [U. S. Comp. St. 1901, p. 457], gives District Courts of the United States jurisdiction “of all civil causes of admiralty and maritime jurisdiction.” This was but a re-enactment of the judiciary act of September 24, 1789, c. 20, 1 Stat. 77, giving to the District Courts "exclusive cognizance of all civil causes of admiralty and maritime jurisdiction.” Criminal jurisdiction is also given to the United States courts by many statutes relating to these subjects.

In the case of The Genesee Chief, 53 U. S. 443, 13 L. Ed. 1058, Chief Justice Taney distinguishes between these doctrines, and holds that Act Feb. 26, 1845, c. 20, 5 Stat. 726, extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same, would be unconstitutional if it depended upon the power of Congress to regulate commerce alone. He argues that, if such jurisdiction could be inferred from the power to regulate commerce, it would necessarily follow that Congress could establish a court of admiralty, and do away with trial by jury, "over the cars engaged in transporting passengers or merchandise from one state to another.” The court says (page 453 of 53 U. S. [13 L. Ed. 1058]) that if the law, namely, that of 1845, is constitutional, it must be supported on the ground that the lakes and navigable waters connecting them are within the scope of the admiralty and maritime jurisdiction, as known and understood in the United States when the Constitution was adopted. In England, admiralty jurisdiction, according to Chief Justice Taney, was always spoken of as confined to the tidal water, and he considered that definition to be sound and reasonable, because in England there was no navigable stream beyond the ebb and flow of the tide; that at the time of the adoption of the Constitution a similar definition was proper here, the old thirteen states being almost entirely limited to tide water for navigation. Courts of

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admiralty then exercised their jurisdiction to the head of navigation and of tide water on the public rivers. But Chief Justice Taney further says that, with the growth of the country, it would be unjust to preserve such an artificial and arbitrary distinction, or to subject, under the Constitution of the United States, one part of a public river to the jurisdiction of a United States court, and to deny it to another part, equally public and but a few yards distant. The court therefore decides that the admiralty and maritime jurisdiction of the United States courts extends beyond the limits of the tide waters, and as this doctrine has been interpreted in further cases, such as Malony v. City of Milwaukee (D. C.) 1 Fed. 611 (relating to a collision on the Erie Canal), Ex parte Boyer, 109 U. S. 629, 27 L. Ed. 1056 (declaring the Illinois & Lake Michigan Canal navigable water), The Daniel Ball, and The Montello, supra, it is evident that the term “navigable waters of the United States” applies: First, to all waters capable of sustaining or being used for interstate commerce or foreign commerce; and, second, to all waters under the admiralty and maritime jurisdiction of the United States, and over which the District Court of the United States can exercise its peculiar admiralty jurisdiction.

Thus it is apparent that bodies of water, which as a whole come under the admiralty and maritime jurisdiction of the United States, may not in their entirety stand the test of navigability established in the Leovy and other cases, supra. These bodies of water might be considered navigable water of the United States, and the jurisdiction of Congress with reference to legislation attach thereto, and yet but a portion of those waters be subject to a jurisdiction limited to a capacity for interstate commerce. It would follow that the admiralty and maritime jurisdiction is broader than the jurisdiction acquired under the interstate commerce provision. One of the most instructive cases upon this question is that of The Hazel Kirke (C. C.) 25 Fed. 601, decided by Judge Benedict, in the Eastern district of New York, affirmed by Circuit Court. This case arose out of a proceeding in admiralty to enforce a lien under section 4465 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3016], with reference to the carrying of passengers.

The Hazel Kirke was a ferryboat operating in Jamaica Bay, in connection with a railroad running to points at or east of Far Rockaway. Jamaica Bay is a much larger body of water, in the near neighborhood of the Far Rockaway Bay under consideration in this case. Judge Benedict held that, although all of the places touched by the vessel in her trips about Jamaica Bay were within the state of New York, nevertheless, as Jamaica Bay is directly connected with the ocean, and as the waters of the bay are within the admiralty and maritime jurisdiction of the United States, Congress had authority to legislate with reference to a vessel on such navigable water of the United States, and to treat such a vessel and such a body of water as capable of being used in interstate commerce, and made subject to laws regulating interstate or foreign commercial transactions. The court therefore says, referring to the case of The Daniel Ball, supra:

"The decision in that case, therefore, compels a decision in this case that the waters of Jamaica Bay are under the direct control of Congress in the exercise of the power conferred by the commercial grant."

And that:

"Manifestly it is not possible for Congress to fully control and adequately protect commerce with foreign nations and among the several states, when that commerce is pursued by means of vessels navigating the public waters of the United States, without controlling the navigation of all vessels navigating such waters, not only those engaged in commerce with foreign nations, and among the several states, but those engaged in domestic commerce, and those engaged in no commerce at all, like the yachts. Accordingly, Congress has undertaken to regulate the lights to be carried by all vessels navigating such waters, and the courses to be pursued by all vessels meeting upon such waters, and these regulations are supreme and binding upon all vessels there navigating, because only by controlling in those particulars the navigation of all vessels navigating such waters can the safe navigation of vessels engaged in interstate or foreign commerce upon such waters be secured."

Under this standard the Hazel Kirke was found to be engaged in navigating public waters of the United States. It is considered that the term “navigable waters of the United States” covers every part of any body of water, tidal or otherwise, any portion of which is capable of use in the ways defined in the Hazel Kirke Case, and which are subject to the admiralty and maritime jurisdiction of the United States. It then follows logically that Congress should regulate interstate or foreign commerce thereon.

The case of In re Garnett, 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631, arose upon a consideration of the doctrine of the law of limited liability as a part of the maritime law of the United States, with relation to its application to vessels engaged exclusively upon an inland river above tide water. In the opinion the court holds that the doctrine of limited liability is a part of the maritime law, and that Congress has the power to legislate within the boundaries of maritime jurisdiction on the subject of maritime law.

"As the Constitution extends the judicial power of the United States to 'all cases of admiralty and maritime jurisdiction,' and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national Legislature, and not in the state Legislatures. It is true we have held that the boundaries and limits of the admiralty and maritime jurisdiction are matters of judicial cognizance, and cannot be affected or controlled by legislation, whether state or national. Chief Justice Taney, in The St. Lawrence, 1 Black, 522, 526, 527; The Lottowana, 21 Wall. 558, 575, 576, 22 L. Ed. 654. But within these boundaries and limits the law itself is that which has always been received as maritime law in this country, with such amendments and modifications as Congress may from time to time have adopted.”

If the entire body of admiralty and maritime law is exclusively within the jurisdiction of the United States government, and Congress has power to legislate upon all matters and subjects with respect to which legislation is necessary in order to carry out the full exercise of that jurisdiction, it seems evident that legislation covering the management of vessels, the control and establishment of harbor lights, the deepening and maintaining of channels and waterways, and eventually the regulating of obstructions to navigation, comes as certainly and directly under the administration of the admiralty and maritime judicial functions as the power to improve waterways, control the conduct and operation of railroads, and direct the management and handling

155 F. 38

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