[co-author: Chiara Sackellares*]
So often the maritime disasters in and around the United States that garner the trade press headlines or U.S. Supreme Court rulings occur off the coasts of the country and the Gulf of Mexico. However, vital commerce and recreational boating activity occur throughout the waterways of heartland America. The U.S. is blessed with more than 360 domestic ports and 25,000 miles of navigable channels. According to the National Park Service, the Mississippi River and its tributaries are not only one of the most active inland waterways in the world, but those 6,000 miles of navigable waterways passing 17 States account for 95 percent of all inland river system tonnage and fascinatingly a majority of all the U.S. agriculture products exported globally. With the impact that these navigable waterways have on our country, it is vital to spotlight for our clients heartland maritime rulings that will change how companies adapt to a shipping incident that can result in criminal charges.
Spotlight: Middle America Tour Boat Loss of Life in U.S. v. McKee, et al.
On July 19, 2018, 17 of the 31 passengers aboard the Ride the Ducks tour boat, Stretch Duck 07, lost their lives during a severe thunderstorm on Table Rock Lake in Branson, Missouri. Table Rock Lake, an artificial lake, in the Ozarks of southwestern Missouri and northwestern Arkansas, is primarily used for recreational activities, including duck boat rides.
On behalf of those who perished and their families, the U.S. government brought suit and criminally charged the captain, operations supervisor and the general manager of the duck boat company (the "Boating Interests"). The government sought to recover under the Seaman's Manslaughter Statute and Statute 18 U.S.C. § 2, which makes it a misdemeanor to negligently operate a vessel, and to adjudicate the case in federal court under admiralty jurisdiction as opposed to bringing the case in state court.
In a recent ruling issued September 4, 2020, the magistrate judge assigned to the case granted the Boating Interests' motion to dismiss for lack of Admiralty Jurisdiction. The judge reasoned that admiralty jurisdiction is not available because Table Rock Lake, where the incident occurred, is not "navigable in fact." While the judge acknowledge federal statute 18 U.S.C. § 3231 authorizes the court to preside over any charged offense against U.S. laws, the judge rejected the government's argument, stating that the prescriptive reach of the statute is defined by admiralty law because the statutes do not define the standard directly.
In the Eighth Circuit, the appellate court overseeing Missouri, the test for admiralty jurisdiction is whether the waterbody is "navigable in fact." This is significant because, in contrast, the congressional regulatory standard for navigability is merely "historical navigability" – a much lower burden. A water is "navigable in fact" when it is "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." Table Rock Lake does not meet the "navigable in fact" standard because: 1) it is impounded by Table Rock Dam, but for which it would be navigable because the lake is on a river that straddles Arkansas and Missouri; and 2) under binding precedent in the Eighth Circuit, in fact under Eighth Circuit precedent pertaining specifically to Table Rock Lake, dammed waterways are not considered navigable for purposes of admiralty jurisdiction.
The judge concluded Table Rock Lake is still primarily used for recreational activities, always has been, and there is no evidence to suggest otherwise today.
The Bigger Picture: Why This Matters to Clients
While the magistrate judge's opinion relies heavily on the stated unchanged navigability of Table Rock Lake and the binding Eighth Circuit appellate precedent, the decision may well have been different if the incident occurred in U.S. states in and around Missouri. That is, there is a circuit split on the matter of what constitutes navigability in fact for such a body of water that is only "non-navigable" because of the presence of a water dam.
The Seventh, Eighth and Ninth Circuits maintain a strict reading of the "navigability in fact" standard. If Table Rock Lake were in another appellate circuit, it would likely be considered a navigable waterway because: 1) other circuits interpret the language of the navigability in fact standard more liberally by focusing on the futurity of the words "susceptible" and "capable," 2) hold that dam-constructed waterways on otherwise interstate highways remain interstate highways and 3) other circuits include recreational pleasure boating within the purview of the term commerce. Moreover, the circuit courts are split in their interpretation of the language "used or capable or susceptible of being used." The majority of circuits agree that as long as a waterway is capable of sustaining interstate commerce, it is a navigable waterway regardless of whether it currently supports such commerce.
Client Considerations and Appeals Court Predictions
- For marine insurance folks, when insuring activities in the Seventh, Eighth or Ninth circuits, admiralty jurisdiction is not likely to be granted if an incident occurs on a dammed waterbody and/or it is not being used for commerce. In contrast, incidents occurring on dammed water bodies in any other circuit are more likely to meet the "navigability in fact" standard for purposes of admiralty jurisdiction so long as the waterbody is either capable or susceptible of being used in interstate commerce, or is currently being used for interstate commerce. Whether or not a case is susceptible to admiralty jurisdiction matters because punitive damages are unavailable for a case brought in state court, whereas they may be available in admiralty court.
- Additionally, marine insurers should consider what constitutes "interstate commerce" in their circuit because some circuits, like the Sixth, with particularly liberal interpretations of the "navigability in fact standard" may consider recreational commercial activities, like duck boat tour rides, to be interstate commerce.
- The best way to get the attention of the U.S. Supreme Court is with circuit splits. This maritime loss addresses a number of infrequent criminal maritime statute interpretations that it can be primed for future consideration in the years to come.
*Incoming first-year associate in the New York office of Holland & Knight