What Are the Navigable Waters of the United States? The answers to two previous questions have referenced the “navigable waters of the United States” as part of the “situs” requirement for Longshore Act coverage in section 903(a). So it’s overdue that we come up with an answer to question number 14 in the series of Top Ten Longshore Act questions.
The Longshore Act does not define “navigable waters of the United States”. You may have had occasion to come across definitions used by the U.S. Army Corps of Engineers, the U.S. Coast Guard, or in the provisions of various environmental statutes such as the Clean Water Act.
The Longshore Act does not use any of these definitions. In a Longshore Act adjudication before the U.S. Department of Labor’s Benefits Review Board, the definition of navigable waters will be taken from the case of The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871), in which the Supreme Court stated,
(Rivers) are navigable in fact, when they are used, or susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted … and they constitute navigable waters of the United States, in contradistinction from the navigable waters of the State, when they form in their ordinary condition by themselves, or by uniting other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries.
This so called “navigable in fact” test means that the water at the site of the injury is capable of carrying cargo in interstate or international commerce or joins up with other waters that are capable of carrying cargo in interstate or international commerce.
The key is a connection or “nexus” with interstate commerce.
This is why the Croton Reservoir, in New York State, is not a navigable water of the United States. It is a landlocked body of water entirely within one state.
This is also why Cayuga Lake, also within New York State, is a navigable water of the United States. It is connected to the Erie Canal system.
The question of whether a body of water is a navigable water of the United States under the Longshore Act can sometimes present a complicated factual issue.
Just look for interstate or international commerce.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.