AN ARGUMENT FOR RETURNING TO THE COMMERCE CLAUSE DEFINITION OF NAVIGABILITY: THE SEAMAN'S MANSLAUGHTER STATUTE AND ITS APPLICABILITY IN STATE WATERS.

• Author: Skidmore, Sarah

1. Introduction 84 II. History of Admiralty Jurisdiction 84 A. Admiralty Jurisdiction in Europe 84 B. Admiralty Jurisdiction in the United States 85 III. History of the Seaman's Manslaughter Statute 88 IV. Language and Interpretation of the Seaman's Manslaughter 91 Statute A. What is a Vessel"? 91 B. What is a "Person Employed"? 94 C. What is an "Executive Officer?" 96 V. Admiralty Jurisdiction in State Waters 96 A. Tragedy At Table Rock Lake--United States v. McKee 96 A. Navigability 98 B. Lessons from Admiralty Tort Jurisdiction--The Sisson 101 Standard VI. Argument for Federal Jurisdiction under the Commerce Clause 102 VII. Conclusion 104 I. Introduction

   18 U.S.C. [section] 1115, commonly known as the Seaman's Manslaughter Statute, states that "every captain, engineer, pilot, or other person employed on any steamboat or vessel" is criminally responsible for negligent conduct that results in death on a vessel. (1) If the owner of the vessel is a corporation, this statute holds the executive officer criminally liable for any death caused by negligence. (2) This statute applies to deaths that occur on waters that fall within the substantive maritime law of the United States (3) and within the general admiralty jurisdiction of the federal courts. (4) In order for a court to have admiralty tort jurisdiction, the death must occur on navigable waters (5); as well as have a significant relationship to traditional maritime activity (6), and the potential to affect maritime commerce. (7) The main question that courts have grappled with is how to determine whether a body of water is navigable to warrant admiralty jurisdiction.

   This comment will analyze the history of admiralty jurisdiction, the language of the Seaman's Manslaughter Statute itself, the legislative history of the statute, how the statute has been applied traditionally, and if a body of water does not fall under admiralty jurisdiction, should it still be subject to federal jurisdiction under the commerce clause of the United States Constitution.

2. History of Admiralty Jurisdiction

   1. Admiralty Jurisdiction in Europe

      Maritime law and the high seas have their origins in the old world. (8) The term "high seas" was typically used by writers of public law and in communications between different governments to designate ownership of the "open, unenclosed waters of the ocean." (9) At one time, portions of the ocean were claimed by different countries. (10) In the sixteenth century, Spain claimed ownership of the Atlantic Ocean, and asserted its right to exclude all other nations from it. (11) Pope Alexander VI granted Portugal and Spain the exclusive use of the Atlantic Ocean, and England had ownership and the exclusive right to sail in the seas around Great Britain. (12)

      During this time, scholars began using the term "high seas" in legal and political discourse. (13) The main question became whether the high seas, or any portion of it, could be the property or under the exclusive jurisdiction of one country, or whether they were open to every country. (14) In his treatise on the Rights of the Sea, scholar Sir Matthew Hale stated "that part of the sea which lies not within the body of a county is called the 'main sea' or 'ocean'". (15) The definition of "high seas" became a frequently litigated issue in English common law courts after Richard II and Henry IV passed statutes that formally defined the high seas as the "portion of the sea which washes the open coast." (16)

      Following the courts' interpretation of this statute, the general rule in England barred admiralty from exercising jurisdiction over cases that arose "within the body of a country." (17) In other words, admiralty jurisdiction became separate from the law of England; and the high seas fell under admiralty jurisdiction. (18) However, other bodies of water such as ports, creeks, and rivers were excluded from this interpretation, which led scholars to conclude that they were under the jurisdiction of England rather than admiralty jurisdiction. (19) However, Justice Field pointed out that commerce was still conducted on waters other than the ocean and the English seas, which were the only bodies of water that were included in admiralty jurisdiction at that time. (20) He stressed the importance of distinguishing between these different bodies of water and providing jurisdiction over the vessels that navigated them. (21)

      According to Justice Field, the term "high seas" did not create a separate and distinct body of water, but only distinguished the open waters and the coast from the narrower waters near land. (22) He recognized that admiralty jurisdiction was more complicated than stating that the high seas and oceans fell under admiralty jurisdiction and the smaller ports and rivers did not. The United States would need more than a one size fits all solution to determine what qualities make a body of water fall under admiralty jurisdiction. (23)

   2. Admiralty Jurisdiction in the United States

      Federal admiralty jurisdiction has its roots in Article III of the United States Constitution, which gives federal courts original jurisdiction over admiralty and maritime cases. (24) Congress codified this power by enacting 28 U.S.C. [section] 1333, which gives federal district courts original jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction." (25) The goal behind federal admiralty jurisdiction was to provide a uniform body of law governing navigation and maritime activity. (26)

      As Justice Field alluded to, the purpose behind having federal admiralty jurisdiction was to "protect commercial shipping with uniform rules of conduct." (27) However, there was still a question whether smaller bodies of water fell under admiralty jurisdiction. According to Justice Field, whether the term "high seas" is applied to oceans, or to smaller seas, will depend upon the circumstances of its use. (28) He argued that the Great Lakes had every characteristic of the high seas despite consisting of fresh water that was not affected by the tides: "they are of large extent in length and breadth; they are navigable the whole distance, in either direction, by the largest vessels known to commerce;... they separate, in many instances, states, and in some instances constitute the boundary between independent nations..." (29)

      An early record of the navigability standard for admiralty jurisdiction is present in the Judiciary Act of 1789. (30) The Act granted federal courts exclusive jurisdiction of "all crimes and offenses" on the high seas and of all civil cases that took place on the high seas and "on waters which are navigable from the sea by vessels of ten or more tons burthen." (31) This act specifically expanded admiralty jurisdiction and made it so federal courts could have jurisdiction over lakes, rivers, and other bodies of water that did not fit the traditional high seas definition of maritime as long as they were navigable.

      Admiralty jurisdiction in the context of criminal liability was formally defined in 18 U.S.C. [section] 7 as "the high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof..." (32) Additionally, the provision included the waters of the Great Lakes, or any body of water connecting them, and the Saint Lawrence River. (33) The Great Lakes Act extended admiralty jurisdiction to tort cases involving "any vessel of twenty tons or upward, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between places in different states upon the lakes and navigable waters connecting said lakes." (34) These new statutes correspond with Justice Field's argument that the Great Lakes had many of the characteristics of the high seas and should therefore be classified as such. (35) Jurisprudence has since determined that other lakes and rivers are navigable bodies of water and therefore subject to federal admiralty jurisdiction. (36)

      According to 18 U.S.C. [section] 7, the admiralty jurisdiction does not include navigable waters that are also within the territorial jurisdiction of a state. (37) This became the subject of litigation in U.S. v Allied Towing Corp. In this case, Allied Towing Corporation was convicted of homicide under the Seaman's Manslaughter Statute for the death of two employees who died in an explosion while they were welding the hull of an Allied tank barge at a pier off of the Elizabeth River in Norfolk, Virginia. (38) The evidence indicated that Allied was negligent by not following Coast Guard regulations that required gasses to be secured. (39) The ignition of gasses within the barge caused an explosion that killed the two employees. (40) Allied appealed its conviction, arguing that admiralty jurisdiction, defined in 18 U.S.C. [section] 7, did not include navigable waters that are also subject to the jurisdiction of a particular state. (41) Allied argued that because the Elizabeth River is within Virginia jurisdiction, the district court did not have jurisdiction over it. (42) The issue before the court was whether this limitation in 18 U.S.C. [section] 7 precluded the application of the homicide statute to a death that occurred on navigable waters within both federal admiralty jurisdiction and the State of Virginia's jurisdiction. (43)

      The Fourth Circuit held that the district court did have jurisdiction in this case notwithstanding the fact that Virginia also had jurisdiction. (44) In its reasoning the court discussed the legislative history of the Seaman's Manslaughter Statute. (45) The court cited the Revised Statutes of 1874 which placed [section] 1115's precursor in a chapter related to crimes "arising within the maritime and territorial jurisdiction of the United States." (46) The court was quick to point out, however, that while other...