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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 11-15060
__________________________
D.C. Docket No. 1:07-cv-00159-WLS
AQUA LOG, INC., a Georgia corporation,
Plaintiff-Appellant,
versus
LOST AND ABANDONED PRE-CUT LOGS AND
RAFTS OF LOGS, lying on the bottom of a navigable
river within one (1) river mile of a point located at
31 degrees 10.177’ North Latitude and 84 degrees
28.122’ West Longitude,
Defendant-Appellee,
STATE OF GEORGIA,
Claimant-Appellee.
__________________________
No. 11-15076
__________________________
D.C. Docket No. 1:07-cv-00208-WLS
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AQUA LOG, INC., a Georgia corporation,
Plaintiff-Appellant,
versus
LOST AND ABANDONED PRE-CUT LOGS AND
RAFTS OF LOGS, lying on the bottom of a navigable
river within one (1) river mile of a point located at
31 degrees 04.157 minutes north latitude and 84 degrees
30.746 minutes west longitude,
Defendant-Appellee,
STATE OF GEORGIA,
Claimant-Appellee.
__________________________
No. 11-15078
__________________________
D.C. Docket No. 1:07-cv-00160-WLS
AQUA LOG, INC., a Georgia corporation,
Plaintiff-Appellant,
versus
LOST AND ABANDONED PRE-CUT LOGS AND
RAFTS OF LOGS, lying on the bottom of a navigable
river within one (1) river mile of a point located at
30 degrees 50.536’ North Latitude and 84 degrees
44.725’ West Longitude,
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Defendant-Appellee,
STATE OF GEORGIA,
Claimant-Appellee.
__________________________
Appeals from the United States District Court
for the Middle District of Georgia
__________________________
(February 15, 2013)
Before TJOFLAT, COX Circuit Judges, and MOTZ, ∗ District Judge.
COX, Circuit Judge:
These cases present a question that is almost as old as the doctrine of
admiralty jurisdiction itself. As Justice Daniel posed it in 1857, “[T]he inquiry is
naturally suggested, what are navigable waters?” Jackson v. The Steamboat
Magnolia, 61 U.S. (20 How.) 296, 320 (1857) (Daniel, J., dissenting). Today, we
answer that question as follows: a waterway is navigable for admiralty-jurisdiction
purposes if, in its present state, it is capable of supporting commercial activity.
∗
Honorable J. Frederick Motz, United States District Judge for the District of Maryland,
sitting by designation.
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I. FACTS & PROCEDURAL HISTORY
These consolidated appeals concern segments of two Georgia waterways—a
two river-mile stretch of the Flint River and a one river-mile stretch of Spring
Creek. The Flint River segment is bounded by a bridge at State Highway 37 at
Newton, Georgia at its northern end and Bainbridge, Georgia at its southern end.
The Flint River empties into Lake Seminole, which lies on the border between
Georgia and Florida. The Flint River south of Bainbridge is currently used in
interstate commerce, but the two river-mile stretch at issue here is not currently
used in interstate commerce. Spring Creek is a tributary of the Flint River.
(References in this opinion to the Flint River and Spring Creek should be
understood as only addressing the two river-mile stretch of the Flint River and the
one river-mile stretch of Spring Creek at issue in these cases.)
Historically, commercial vessels used both the Flint River and Spring Creek
for transportation. The parties agree that the Flint River was used to transport
commercial vessels and that Spring Creek was capable of transporting commercial
vessels. Although currently there is no commercial activity on these waterways,
the parties agree that the Flint River and Spring Creek can, in their present states,
transport commercial vessels loaded with freight in the regular course of trade for
at least part of the year.
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During the late nineteenth century and early twentieth century, loggers
transported their commercially harvested logs by floating them down rivers.
Inevitably, some of the logs sank to the bottom. Today, there is an increased
demand for these sunken logs because they produce superior furniture, flooring,
and musical instruments. Such submerged logs are at the heart of this appeal.
Aqua Log, a company that finds, removes, and sells submerged logs, has
located a number of submerged logs that have been abandoned by their original
owners at the bottom of the Flint River and Spring Creek. Aqua Log estimates that
there are hundreds of submerged logs at the bottoms of the waterways.
Aqua Log, through its president, has located and removed two logs from the
Flint River, using the Flint River to transport the logs. It has also removed one log
from Spring Creek, using Spring Creek to transport that log. Aqua Log wishes to
remove all of the submerged logs and sell them.
So, in August 2007, Aqua Log, invoking the court’s admiralty1 jurisdiction,
brought three in rem actions2 seeking a salvage award for the logs or, in the
alternative, an award of title to the logs based on the American Law of Finds. The
1
The terms “admiralty” and “maritime” are “virtually synonymous.” Bryan Garner, A
Dictionary of Modern Legal Usage 29 (2d ed. 1995). We therefore use the terms
interchangeably.
2
Case No. 11-15060 and Case No. 11-15076 involve the Flint River, while Case No. 11-
15078 involves Spring Creek.
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State of Georgia intervened and claimed ownership of the logs. Georgia moved for
summary judgment, arguing that the court lacks subject-matter jurisdiction because
the Flint River and Spring Creek are not navigable waters. The district court
agreed and granted summary judgment in favor of Georgia. Specifically, the court
held that a waterway is only navigable for admiralty jurisdiction purposes when
there is evidence of present or potential commercial activity on that waterway.
Finding that no commercial activity currently occurs on the Flint River and Spring
Creek and that Aqua Log failed to present evidence of any planned commercial
activity, the court determined that it lacked subject-matter jurisdiction and granted
summary judgment in favor of Georgia. Aqua Log appeals.
II. ISSUES ON APPEAL
This appeal presents two issues: first, whether the district court erred in
requiring evidence of present or planned commercial activity on a waterway for it
to be considered navigable for admiralty-jurisdiction purposes; and second,
whether the Flint River and Spring Creek are navigable waterways.
III. STANDARD OF REVIEW
Georgia raised the issue of subject-matter jurisdiction in its motion for
summary judgment. Subject-matter jurisdiction, however, is more appropriately
addressed in a motion to dismiss pursuant to Federal Rule of Civil Procedure
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12(b)(1). As a result, we will treat the district court’s grant of summary judgment
for lack of subject-matter jurisdiction as a dismissal under Rule 12(b)(1). See
United States v. Blue Cross & Blue Shield of Ala., Inc., 156 F.3d 1098, 1101 n.7
(11th Cir. 1998) (treating a district court’s grant of summary judgment for lack of
subject-matter jurisdiction as a dismissal under Rule 12(b)(1)). We review de novo
the district court’s dismissal for lack of subject-matter jurisdiction. Broward
Gardens Tenants Ass’n v. U.S. Envtl. Prot. Agency, 311 F.3d 1066, 1072 (11th Cir.
2002).
IV. CONTENTIONS OF THE PARTIES
Aqua Log contends that the district court applied the wrong test to determine
navigability and asks us to adopt a test that defines navigable waters as those
waters that are merely capable of being used for commercial purposes. If we adopt
that test, Aqua Log contends, then the Flint River and Spring Creek are navigable
waterways, and the district court has subject-matter jurisdiction.
Georgia, on the other hand, urges us to adopt the district court’s test for
navigability—that a waterway is navigable only if it currently supports commercial
activity or if there is evidence of planned commercial activity on that waterway.
And because the Flint River and Spring Creek do not currently support commercial
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activity and no such activity is planned, the district court properly concluded that
the waterways are not navigable and that it lacked subject-matter jurisdiction.
V. DISCUSSION
The Constitution delegates jurisdiction over admiralty cases to the federal
courts. U.S. Const. art. III, § 2. This power is codified in 28 U.S.C. § 1333(1),
which gives Article III courts “original jurisdiction . . . of . . . [a]ny civil case of
admiralty or maritime jurisdiction.” Federal admiralty jurisdiction extends to all
navigable waters. Ex parte Garnett, 141 U.S. 1, 15, 11 S. Ct. 840, 843 (1891);
Grant Gilmore, Jr. & Charles L. Black, The Law of Admiralty 31–32 (2d ed. 1975)
(“[T]he admiralty jurisdiction of the United States extends to all waters, salt or
fresh, with or without tides, natural or artificial, which are in fact navigable in
interstate or foreign water commerce.”). Thus, for a court to have admiralty
jurisdiction, the body of water in question must be navigable. Both Aqua Log and
Georgia agree that for the court to have admiralty jurisdiction in these in rem
actions, the waterways where the res (the submerged logs) are located must be
navigable.
Aqua Log seeks a salvage award for the submerged logs or, in the
alternative, title to the logs. Aqua Log contends that if the court does not have
admiralty jurisdiction, then it will not be able to pursue its claims, which are
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unique to maritime law. For the court to have admiralty jurisdiction, the Flint
River and Spring Creek must be navigable. Thus, we must decide (A) what test
applies to determine the navigability of a waterway for admiralty-jurisdiction
purposes and (B) whether the Flint River and Spring Creek meet that test. We
address each issue in turn.
A.
We first consider what test applies to determine if a body of water is
navigable for admiralty-jurisdiction purposes. 3 The parties have not called to our
attention any Eleventh Circuit precedent addressing this issue.
The district court defined navigable waters as those waters with evidence of
present or potential commercial activity. Relying on Seymour v. United States,
744 F. Supp. 1161 (S.D. Ga. 1990), the court reasoned that the purpose of
admiralty jurisdiction is to promote and protect commercial activity and that, in the
absence of such commercial activity, the federal interest in protecting and
promoting commercial activity no longer exists. And so, according to the district
3
We note that the term “navigable” has different meanings in different contexts. Kaiser
Aetna v. United States, 444 U.S. 164, 170–72, 100 S. Ct. 383, 388–89 (1979). In this case, we
are concerned only with term as it used to establish the limits of the jurisdiction of the federal
courts over admiralty and maritime cases.
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court, admiralty jurisdiction should extend only to those waterways with present or
planned commercial activity.
The district court’s opinion is well-reasoned, but we respectfully disagree
with the court’s holding. And, we are not writing on a clean slate. We are bound
by the Fifth Circuit’s decision in Richardson v. Foremost Ins. Co., 641 F.2d 314
(5th Cir. Apr. 1981), aff’d sub nom. Foremost Ins. v. Richardson, 457 U.S. 668,
102 S. Ct. 2654 (1982). The Fifth Circuit decided Richardson on April 2, 1981,
and under our precedent, Fifth Circuit cases decided before October 1, 1981, bind
us. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
In Richardson, the Fifth Circuit addressed whether a tort claim based on a
collision between two pleasure boats on a waterway that was “seldom, if ever, used
for commercial activity” fell within the federal courts’ admiralty jurisdiction. 641
F.2d at 315–16. The court noted that for admiralty jurisdiction to exist in a tort
case, two requirements must be met: (1) there must be a significant relationship
between the alleged wrong and traditional maritime activity (the nexus
requirement) and (2) the tort must have occurred on navigable waters (the location
requirement). Id. at 315. Concluding that both requirements had been met, the
Fifth Circuit held that the district court had admiralty jurisdiction over the tort
claim. Id. at 316. The court determined that the nexus requirement had been met
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because boats “are engaged in traditional maritime activity when a collision
between them occurs on navigable waters.” Id. As to the location requirement, the
court concluded that the tort occurred on navigable waters even though the
waterway was seldom, if ever, used for commercial activity. Id. Specifically, the
court said:
We note additionally from the record that the place where the accident
occurred is seldom, if ever, used for commercial activity. That does
not cause us to vary from our holding. . . . It would be introducing
another note of uncertainty to hold that admiralty jurisdiction extends
only to a stretch of navigable water that presently functions as a
commercial artery. . . . If the waterway is capable of being used in
commerce, that is a sufficient threshold to invoke admiralty
jurisdiction.
Id. We are bound by this holding.4 And the fact that Richardson considered
whether admiralty jurisdiction extends to a tort case does not change this
conclusion. Whether in a tort case or in a salvage case, the waterway at issue must
be navigable.
4
The Fifth Circuit’s definition of navigability is a holding. A holding is both the result of
the case “and those portions of the opinion necessary to that result.” United States v. Kaley, 579
F.3d 1246, 1253 n.10 (11th Cir. 2009) (quoting Seminole Tribe of Fla. v. Florida., 517 U.S. 44,
67, 116 S. Ct. 1114, 1129 (1996)). The Fifth Circuit concluded that the district court erroneously
dismissed the tort case for lack of subject-matter jurisdiction. To reach this result, it had to
determine that both requirements for admiralty jurisdiction over tort cases—the nexus and
location requirements—were met.
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Neither Georgia nor the district court undertakes to distinguish this holding
in Richardson. 5 Instead, Georgia and the district court rely on cases from three of
our sister circuits that they argue support a test for navigability that requires
evidence of present or potential commercial activity. Specifically, they point to the
Seventh Circuit’s decision in Chapman v. United States, 575 F.2d 147 (7th Cir.
1978) (en banc), the Eighth Circuit’s decision in Livingston v. United States, 627
F.2d 165 (8th Cir. 1980), and the Ninth Circuit’s decision in Adams v. Montana
Power Co., 528 F.2d 437 (9th Cir. 1975). Georgia and the district court read these
cases as adopting a test for navigability that requires current commercial activity.
But each case also contains language that suggests they adopt a test for navigability
that looks to whether the waterway at issue is simply capable of supporting
commercial activity. See Livingston, 627 F.2d at 169–70 (“[T]he concept of
‘navigability’ in admiralty is properly limited to describing a present capability of
waters to sustain commercial shipping.” (emphasis added)); Chapman, 575 F.2d at
151 (“We hold that a recreational boating accident does not give rise to a claim
within the admiralty jurisdiction when it occurs on waters that . . . are not in fact
used for commercial navigation and are not susceptible of such use in their present
5
While we agree with the district court that Richardson primarily focused on the nature
of the action and actors, Richardson nevertheless addressed the character of the water where the
tort occurred and we are bound by that holding.
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state.” (emphasis added)); Adams, 528 F.2d at 439 (“A waterway is navigable
provided that it is used or susceptible of being used as an artery of commerce.”
(emphasis added)).
Nevertheless, even if these cases are understood to mean what the district
court and Georgia suggest, there is substantial precedent to the contrary in our
sister circuits. See Cunningham v. Dir., Office of Workers’ Comp. Programs, 377
F.3d 98, 108 (1st Cir. 2004) (noting that for admiralty-jurisdiction purposes,
navigability is understood to describe a present capability of a waterway to sustain
commerce); LeBlanc v. Cleveland, 198 F.3d 353, 359 (2d Cir. 1999) (looking to
whether the waterway is “presently used, or is presently capable of being used, as
an interstate highway for commercial trade” in determining whether it is
navigable); Price v. Price, 929 F.2d 131, 134 (4th Cir. 1991) (adopting a test that
considers whether the body of water at issue is capable of supporting commercial
activity); Finneseth v. Carter, 712 F.2d 1041, 1044 (6th Cir. 1983) (considering
whether the waterway “is used or capable or susceptible of being used as an
interstate highway for commerce” when deciding whether it is navigable).
On appeal, Georgia argues that a test for navigability that looks to whether
there is evidence of current or planned commercial activity on the waterway strikes
the appropriate balance between protecting commercial maritime activity and
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respecting the ability of the states to regulate their own affairs by not applying
substantive maritime law (which applies when admiralty jurisdiction is invoked) in
the absence of actual commercial activity.
While sound policy reasons support the test proposed by Georgia, the
navigability test announced in Richardson is supported by equally sound policy. A
test for navigability that looks to whether a waterway is capable of supporting
commercial activity promotes and encourages maritime commerce.
The primary focus of maritime law is to protect and encourage commercial
maritime activity. See Sisson v. Ruby, 497 U.S. 358, 367, 110 S. Ct. 2892, 2898
(1990) (“The fundamental interest giving rise to maritime jurisdiction is ‘the
protection of maritime commerce.’” (quoting Foremost Ins. Co. v. Richardson, 457
U.S. 668, 674, 102 S. Ct. 2654, 2658 (1982))). When admiralty jurisdiction is
invoked, a uniform body of federal maritime law applies. Yamaha Motor Corp.,
U.S.A. v. Calhoun, 516 U.S. 199, 206, 116 S. Ct. 619, 623 (1996) (“With admiralty
jurisdiction . . . comes the application of substantive maritime law.” (quoting E.
River S.S. Corp. v. Transamercia Delavel Inc., 476 U.S. 858, 864, 106 S. Ct. 2295,
2298–99 (1986))). This body of law serves to protect commercial activity by
ensuring that uniform rules of conduct are in place. Exec. Jet Aviation, Inc. v. City
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of Cleveland, 409 U.S. 249, 269–70, 93 S. Ct. 493, 505 (1972). The Supreme
Court has said:
The law of admiralty has evolved over many centuries, designed and
molded to handle problems of vessels relegated to ply the waterways
of the world, beyond whose shores they cannot go. That law deals
with navigational rules—rules that govern the manner and direction
those vessels may rightly move upon the waters. When a collision
occurs or a ship founders at sea, the law of admiralty looks to those
rules to determine fault, liability, and all other questions that may
arise from such a catastrophe. Through long experience, the law of
the sea knows how to determine whether a particular ship is
seaworthy, and it knows the nature of maintenance and cure. It is
concerned with maritime liens, the general average, captures and
prizes, limitation of liability, cargo damage, and claims for salvage.
Id. Finding admiralty jurisdiction when a waterway is capable of supporting
commercial activity creates a “climate conducive to commercial maritime
activity.” Finneseth, 712 F.2d at 1046. That is, commercial activity could begin
on such a waterway and immediately have uniform rules in place without having to
determine whether commercial activity currently takes place on that waterway.
Moreover, a test for navigability that requires actual commercial activity is
unpredictable and is therefore not conducive to maritime commerce. If actual
commercial activity is the test, the application of substantive maritime law
becomes contingent on the presence or absence of commercial activity. Price, 929
F.2d at 133–34 (“Rules governing conduct on navigable waters cannot remain
uniform or have any certainty if their applicability is dependent on whether, on any
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given day, commercial maritime activity is being conducted on the waters.”). A
test that requires evidence of actual or likely commercial activity fails to provide
the predictability that encourages maritime commerce. And predictability in the
courts is valuable.
We are mindful that the Richardson test may expand admiralty jurisdiction
into waterways that may never be used for commercial maritime activities.
However, the broad federal interests in protecting and promoting maritime
commerce justify this potential encroachment. “If the waterway is capable of
being used in commerce, that is a sufficient threshold” to conclude that it is
navigable for admiralty-jurisdiction purposes. Richardson, 641 F.2d at 316.
B.
We next address whether the Flint River and Spring Creek are capable of
supporting commercial activity and are therefore navigable waters. We easily
answer this question because both Aqua Log and Georgia agree that the Flint River
and Spring Creek are capable of supporting commercial activity. (See No. 11-
15078, Dkt. 43-1 at 3; No. 11-15076, Dkt. 60-11 at 2; No. 11-15060, Dkt. 65-19 at
2.) Therefore, we conclude that these are navigable waters for admiralty-
jurisdiction purposes.
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VI. CONCLUSION
Because the segments of the Flint River and Spring Creek at issue in these
cases are capable of supporting commercial activity, they are navigable waters for
admiralty-jurisdiction purposes. We therefore hold that the district court erred in
concluding that the waterways are not navigable and dismissing these cases for
lack of subject-matter jurisdiction on that ground.6 Accordingly, we reverse and
remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.
6
The district court decided it lacked subject-matter jurisdiction solely on the basis that
the Flint River and Spring Creek are not navigable waters. We express no opinion on whether
there are any other requirements necessary for its claims to fall within federal admiralty
jurisdiction.
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