Navigable in Fact: Admiralty Jurisdiction in Midwestern Waters

Lawyers in jurisdictions that regularly see maritime cases can often skip a preliminary step: evaluating the body of water itself. For example, nobody disputes that a fishing accident in Buzzards Bay or a marina fire on Lake Pontchartrain occurs within federal waters. The nearby ocean and its industries import a presumption of admiralty jurisdiction. But this presumption of federal jurisdiction becomes murkier in the Midwest, where a significant number of marine incidents occur in inland lakes or rivers—bodies of water that nonetheless may share interconnectivity with the broader waterways of the United States.[1]

But what is the test? In more practical terms, when is filing under (or arguing for) admiralty jurisdiction worthwhile in a case involving a Midwestern river or lake; or, conversely, when will it waste your client’s time and money? This article will look at a recent example from the Western District of Wisconsin involving a waterskiing accident on Lake Delton, a prominent recreational lake in south-central Wisconsin with connectivity to the Wisconsin River, which itself flows into the Mississippi River. In Stewart v. Wang, the federal court held that no admiralty jurisdiction exists because Lake Delton is not a “navigable waterway” for purposes of admiralty jurisdiction.[2] The Stewart court got it right. But the makeup of Lake Delton—not altogether much different than many other lakes and rivers in the Midwest and beyond—presents a good vehicle to discuss this issue, and also explain what more the court could have said.

Lake Delton and the Accident

In Stewart v. Wang, the parties agreed that: “Lake Delton is a man-made lake created for recreational purposes in 1927 when Dell Creek, a 15-mile stream system, was dammed at its confluence with the Wisconsin River. Lake Delton is located entirely within the state of Wisconsin. On the upstream end, it is fed by Dell Creek and its tributaries. The downstream end of Lake Delton is dammed near the Wisconsin River.”[3] While not addressed by the Stewart court, the Wisconsin River flows into the Mississippi River near Prairie du Chien, Wisconsin. The Wisconsin River also has dams at various points to provide hydroelectric power, including the Prairie du Sac Dam, a structure downstream between Lake Delton and the Mississippi River.

The plaintiff Alisha Stewart is a professional water skier and Australian citizen.[4] The defendant Anthony Wang, a Wisconsin citizen, operated the boat piloting Ms. Stewart as she practiced for an upcoming waterskiing competition on Lake Delton. During this practice, Ms. Stewart struck a buoy, causing her to fracture her foot and end her competition season.[5] Because Ms. Stewart sued Mr. Wang for damages exceeding $75,000, the court had diversity jurisdiction.[6] On the merits, a material issue became whether a liability waiver that Ms. Stewart had signed would be enforced.[7] Ms. Stewart argued that Wisconsin law applies under the court’s diversity jurisdiction.[8] To counter this well-established rule, Mr. Wang argued that, because the accident occurred within the court’s admiralty jurisdiction, substantive federal maritime law should apply instead.[9] Why would Mr. Wang care about this distinction? Because, as conceded by both parties, the liability waiver is more likely to be enforced under federal maritime law.[10]

“Navigable in Fact”

Mr. Wang’s argument turned on whether Lake Delton constitutes a navigable waterway for purposes of federal admiralty jurisdiction. With tort cases, that question is the first in the two-part “location” and “connection” test established by the United States Supreme Court.[11] Location is found if the tort occurred on a “navigable waterway” or, under the Extension of Admiralty Act, the “injury suffered on land was caused by a vessel on navigable water.”[12] The definition of “navigable waterway” has deep roots, stemming from The Daniel Ball, an 1870 United States Supreme Court decision wherein the Court held that, for admiralty jurisdiction to apply, the subject waterway must be “navigable in fact.”[13] The frequently cited rule for navigability is as follows:

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.[14]

The Daniel Ball rule poses two restrictions. First, generally, the waterway must connect multiple states, or the United States with a foreign country, as opposed to a body of water constrained wholly within one state. Second, more specifically, if the waterway constitutes this “continued highway,” it must also be actually capable of such interstate or international commerce, as opposed to some theoretical commerce and navigation created upon an engineering improvement.[15]

The first Daniel Ball factor is relatively straightforward. With perhaps a few exceptions, it’s easy to look at a map and determine a shoreline. Does the waterway touch two states or two sovereign nations? The answer is often self-evident. But the inquiry can also be more complex. In the Midwest, water commonly flows into either the Mississippi or Great Lakes drainage systems, two waterways that are historically within admiralty jurisdiction. For example, Lake Minnetonka, a prominent recreational and commercial lake near Minneapolis, slowly drains into Minnehaha Creek, which itself meanders until it reaches a waterfall that falls into the Mississippi River. The lake is thus connected to interstate and even international shores. Is it thereby within admiralty jurisdiction? No. It is not “navigable in fact,” meaning a typical vessel couldn’t actually travel from Orono, Minnesota to the Gulf of Mexico because Minnehaha Creek is too narrow and shallow and, perhaps more importantly, there is also a waterfall preventing ordinary navigation.

Thus, the second Daniel Ball factor is perhaps the more relevant inquiry for the “location” test. It involves a critical understanding of the subject “waterway,” and sometimes even reevaluating what constitutes the “waterway” itself. That is, because of navigational obstructions (e.g., dams), one named waterway may fall within both federal admiralty and state jurisdictions. For example, the Seventh Circuit held that, while the Fox River—a waterway flowing between Wisconsin and Illinois—may “as a whole be navigable,” that portion of the river where the incident occurred may not be navigable because of a dam.[16] Indeed, since 2015, the Mississippi River itself likely falls within both federal admiralty jurisdiction and Minnesota state jurisdiction. Through an act of Congress, the Army Corps of Engineers closed the Upper St. Anthony Falls Lock & Dam, meaning that boats can no longer navigate through St. Anthony Falls in Minneapolis.[17] Minnesota should thus have jurisdiction, and its substantive law should apply, to a maritime incident upstream of that closed lock, a fact that could later change if Congress decides to open the lock again.[18]

The “location” inquiry is also not limited to Midwestern rivers. There are lakes that share interstate and international shoreline, thus creating the starting point for potential federal admiralty jurisdiction. For example, in Minnesota, both Lake of the Woods and Rainy Lake are significant waterways that share a border with Canada. In recent years, including a case brought by attorneys at Eckland & Blando, vessel owners on these lakes have successfully brought actions under the Limitation of Liability Act (46 U.S.C. § 30501 et seq.) and Federal Rule of Civil Procedure 9(h), which designates the action as being “in admiralty.”[19] Although these waterways are small compared to the Great Lakes, there is no reasonable dispute that vessels navigate internationally between Minnesota and Canada.

Return to Lake Delton

This legal summary regarding “navigable in fact” dictates why the Stewart court decided correctly. It also explains why Mr. Wang’s argument for admiralty jurisdiction can only charitably be called a Hail Mary. As busy and connected as Lake Delton may be, nobody disputed that a dam choked Lake Delton off from the Wisconsin River, the only potential artery connecting Lake Delton with a “continued highway over which commerce is or may be carried on with other States or foreign countries.” That obstruction also mooted two other relevant issues. First, is Dell Creek even capable of being navigable in fact? Aerial views show that it is quite narrow and likely shallow. Second, as mentioned above, at least one more dam exists on the Wisconsin River before it reaches the Mississippi River. And aerial views there show that the lock that once allowed marine traffic through that dam is most likely no longer operational.[20]

Conclusion

A lawyer addressing a marine accident or incident should always consider whether admiralty jurisdiction exists. It is a preliminary question that may have a significant impact on his or her client’s rights. But knowing the question is different from pushing the question in court, inevitably wasting everyone’s time and resources—or, at best, hoping that a judge will mess it up. That said, as importantly, attorneys should recognize that many non-traditional waterways, in the Midwest and beyond, are candidates for admiralty jurisdiction, depending on the location of the relevant incident. And good and creative arguments can be made under the relevant tests that could benefit your clients.

If you have any questions or concerns about navigable waterways, federal admiralty jurisdiction, or any other maritime concerns, please contact the experienced admiralty and maritime attorneys at Eckland & Blando LLP.