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October 1, 1997

ETOILE LEBLANC and STEPHEN OSSEN, Plaintiffs, against TERRY CLEVELAND, ROBERT GRANT, JR. and JRD RETAILERS, LTD., d/b/a SYD and DUSTY'S OUTFITTERS, Defendants. TERRY CLEVELAND and ROBERT GRANT, JR., Defendants and Third-Party Plaintiffs, -against- SYD and DUSTY OUTFITTERS, Third-Party Defendant.

The opinion of the court was delivered by: KAHN

 On July 4, 1994 plaintiffs Etoile LeBlanc ("LeBlanc") and Stephen Ossen ("Ossen") suffered personal injuries when the kayak they were paddling on the Hudson river was struck by a recreational motor boat operated by defendant Terry Cleveland and owned by defendant Robert Grant, Jr. ("Grant"). LeBlanc and Ossen had rented their Kayak from defendant/third-Party defendant JRD Retailers, Ltd., d/b/a Syd and Dusty's Outfitters ("JRD"). The collision occurred approximately one and one-half miles downstream from the confluence of the Sacandaga and Hudson rivers in the vicinity of Lake Luzerne.

 The plaintiffs commenced the instant action on April 15, 1995. The complaint contains a single claim sounding in negligence and invokes the court's admiralty jurisdiction.

 JRD now moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(h) on the ground that the court lacks admiralty jurisdiction over this matter. JRD contends that the Hudson river in the vicinity of the accident is not a navigable waterway. The plaintiffs and defendant Grant assert that the river is navigable in that area and that admiralty jurisdiction thus exists.

 The facts are essentially undisputed. The Army Corps of Engineers describes the subject waterway as follows:

The traditional source of the Hudson River is at Lake Tear in the Adirondacks. The upper stretch of the river runs in a generally westerly direction then southerly and easterly to Glens Falls. From Glens Falls the course is generally southerly to the mouth at the Battery in New York. Total length of the river is 313.2 [miles], while the airline distance from the source to the mouth is about 250 miles. Between the source and Fort Edward (mile 193.8) the river is precipitous and marked by numerous falls and rapids. Below the dam at Troy, (mile 153.8), the river is tidal and can be considered an arm of the sea. The locks at Troy Dam provide passage between the Atlantic Ocean and the New York State Barge Canal and the Champlain Canal.

 Krouner Aff., Ex. A (Army Corps of Engineers, Determination of Navigability for Hudson River, New York, dated May 21, 1975). Although the river lies wholly within the state of New York, the parties agree that below Fort Edward the Hudson river is a navigable waterway subject to the court's admiralty jurisdiction because it permits passage to the open sea. *fn1" The parties differ as to the navigability of the segment of the Hudson between Fort Edward and the place of the plaintiffs' accident.

 Until approximately 1951, timber had been floated down the Hudson from a point near its source to the timber mills of Glens Falls and Fort Edward. This practice originated in the early nineteenth century. There are now nine dams between the place of the accident and Fort Edward. The parties appear to agree that these dams would now frustrate that activity, with the possible exception of river conditions that would permit timber float over the dams.

 Nothing in the record suggests that the Hudson north of Fort Edward is now, or has ever been, an artery of maritime commerce. *fn2" The subject collision occurred in the vicinity of a stretch of flat water some seven miles in length which is used by pleasure boats. This part of the Hudson cannot, however, be accessed from Fort Edward due to the presence of numerous areas of rapids, the aforementioned dams, and at least three major falls of 30 feet or more in height. Thus, in order for a boat to travel on this seven-mile stretch of the Hudson, it must be launched from the river's banks.

 "Admiralty jurisdiction in tort exists when the wrong (1) took place on navigable waters ('situs') and (2) 'bear[s] a significant relationship to traditional maritime activity' ('status')." Keene Corp. v. United States, 700 F.2d 836, 843 (2d Cir.), cert. denied, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983)(quoting Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 254-61, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972)). It is well settled that the collision of two pleasure boats in navigation constitutes conduct that bears a significant relationship to traditional maritime activities. Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 n. 5, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982). The parties thus do not quarrel with the proposition that the status prong of admiralty jurisdiction has been established. There is strong disagreement, however, with respect to the situs prong of the test.

 "'Navigable water'" subject to federal admiralty jurisdiction was defined as including waters that are navigable in fact in The Propeller Genesee Chief v. Fitzhugh, [53 U.S. 443], 12 How. 443, 13 L. Ed. 1058 (1851)." Kaiser Aetna v. United States, 444 U.S. 164, 173 n. 7, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979). Rivers are navigable in fact when "they are 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." The Daniel Ball, 77 U.S. 557, 563, 19 L. Ed. 999 (1870). In Reynolds v. Bradley, 644 F. Supp. 42 (N.D.N.Y. 1986), then Chief Judge Munson defined navigability as the "requirement that a body of water be presently supporting or capable of supporting interstate trade or travel at the time of the alleged wrongful acts . . ." Id. at 44. Most other courts to consider the question have arrived at a similar formulation for navigability. See Mullenix v. United States, 984 F.2d 101, 104 (4th Cir. 1993)(navigability depends upon a waterway's capability to bear commercial navigation); Three Buoys Houseboat Vacations U.S.A., Ltd. v. Morts, 921 F.2d 775, 778 (8th Cir. 1990), cert. denied, 502 U.S. 898, 116 L. Ed. 2d 224, 112 S. Ct. 272 (1991)(same); Finneseth v. Carter, 712 F.2d 1041, 1044 (6th Cir. 1983)(a waterway is "navigable . . . if it is used or capable or susceptible of being used as an interstate highway for commerce over which trade or travel is or may be conducted in the customary modes of travel on water"); Adams v. Montana Power Co., 528 F.2d 437, 439 (9th Cir. 1975)(same); Great American Ins. Co. v. Tugs "Cissi Reinauer", 933 F. Supp. 1205, 1211 (S.D.N.Y. 1996)("[a] river is considered 'navigable' if it is capable of being used by the public for the purposes of transportation and commerce."); Sawczyk v. United States Coast Guard, 499 F. Supp. 1034, 1040 (W.D.N.Y. 1980)(same).

 In arguing that the situs of the accident supports admiralty jurisdiction, the plaintiffs rely upon the opinions of the Army Corps of Engineers and the Coast Guard which both hold that the Hudson river is a navigable waterway of the United States in its entirety. Krouner Aff., Exs. A & B. As Judge Munson noted in Reynolds, these opinions are entitled to some weight but ultimately do not: resolve the question. 644 F. Supp. at 44. That is because definitions of navigability employed to establish the bounds of federal regulatory authority do not in turn determine the limits of the federal judiciary's admiralty jurisdiction. Adams, 528 F.2d at 440; Reynolds, 644 F. Supp. at 45; see also Kaiser Aetna, 444 U.S. at 388-89(recognizing that the definitions of navigability articulated by the court have varied depending upon the federal power at issue). For example, while the placement of a dam across a navigable waterway may not divest Congress of the power to regulate the waterway, it will have the effect of divesting the court of admiralty jurisdiction if all commercial maritime activity is eliminated thereby. Adams, 528 F.2d at 440. That is because the fundamental interest giving rise to maritime jurisdiction is 'the protection of maritime commerce.'" Sisson v. Ruby, 497 U.S. 358, 367, 111 L. Ed. 2d 292, 110 S. Ct. 2892 (1990)(quoting Foremost, 457 U.S. at 674). *fn3" Without the possibility of maritime commerce, there is no interest served in imposing a uniform body of admiralty law upon a case or controversy when the application of state tort law would both redress the wrong and accommodate the state's interest in applying its substantive law. Adams, 528 F.2d at 440.

 In seeking a broader definition of navigability, the plaintiffs cite to the Supreme Court's decision in The Montello, 87 U.S. 430, 22 L. Ed. 391 (1874). Therein, the Supreme Court stated:

The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce be ...

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