The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
In October 2005, the Ethan Allan (operated by Shoreline Cruise, Inc.) sank in Lake George. Various lawsuits were commenced concerning this sinking. Some of the lawsuits allege that the wake of the Mohican (the boat owned by the Petitioner Lake George Steamboat Company) caused the Ethan Allan to capsize. The Lake George Steamboat Company commenced this action pursuant to the Limitation Act, 46 U.S.C. § 181, et seq. The Lake George Steamboat Company now moves for an order appraising the value of the Mohican, directing the Lake George Steamboat Company to deposit a bond or undertaking in an amount equal to the value of the Mohican, directing and managing notice to persons who may claim loss or damage arising out of the sinking of the Ethan Allan, and restraining any further actions against the Lake George Steamboat Company arising out of the sinking of the Ethan Allan. Shoreline Cruise (the owner of the Ethan Allen) and Richard Paris (the captain of the Ethan Allan) move to dismiss the Limitation Act claim for lack of subject matter jurisdiction. This matter came to be heard by the Court at oral argument in Albany, New York on October 10, 2006. After affording the parties an opportunity to be heard, the Court issued its decision from the bench. The following written opinion, together with the Court's bench decision, constitute the Order of the Court with respect to the pending motion.
The Lake George Steamboat Company brings this action pursuant to the Limitation Act, 46 U.S.C. § 181, et seq., which "allows a vessel owner to limit liability for damage or injury, occasioned without the owner's privity or knowledge, to the value of the vessel or the owner's interest in the vessel." Lewis v. Lewis & Clark Marine, Inc., 121 S.Ct. 993, 1000 (2001). Under the Limitation Act, a vessel owner seeking limitation of liability must file a petition. The Court then oversees an appraisal of the vessel's value and secures the value of the vessel or owner's interest, marshals claims, and enjoins the prosecution of other actions with respect to the claims. In these proceedings, the court, sitting without a jury, adjudicates the claims.
The court determines whether the vessel owner is liable and whether the owner may limit liability. The court then determines the validity of the claims, and if liability is limited, distributes the limited fund among the claimants.
Lewis, 121 S.Ct. at 1001.
The Limitation Act only applies with respect to matters arising on navigable waters of the United States. This case presents the question of whether Lake George is a navigable water of the United States within the meaning of the Limitation Act. The parties agree that the Limitation Act applies only to the navigable waters of the United States, but disagree whether Lake George constitutes navigable waters of the United States.
As the Supreme Court has stated, "[t]he power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the states or with foreign countries." Escanaba & Lake Michigan Transp. Co. v. City of Chicago, 2 S.Ct. 185 (1883). In The Daniel Ball, 77 U.S. 557 (1870), the Supreme Court stated as follows:
[Waters] are navigable in fact when they are used, or are 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. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.
The parties have provided little evidence concerning Lake George and its ability to be navigated. It was not until Shoreline Cruise and Richard Paris moved to dismiss the instant action for lack of subject matter jurisdiction that the Court was presented with any evidence, admissible in form, concerning the navigability of Lake George.
Lake George is not a closed basin. It receives its water from precipitation and springs. The water flows out of Lake George via La Chute River into Lake Champlain, the Saint Lawrence Seaway, and, ultimately, the Atlantic Ocean. Zoli aff. at ¶ 13. As noted, there is a passageway known as La Chute River, extending between Lake George and Lake Champlain. Thus, one might easily conclude that Lake George is, indeed, navigable because the water flows from New York into Vermont. However, the relevant inquiry is not whether water flows from Lake George into Lake Champlain, but whether commerce can be conducted from New York into Vermont via La Chute River.
As the affidavit of Theodore Zoli, a licensed United States Coast Guard captain, attests, La Chute River consists of, among other things, a series of six waterfalls and many rapids, and drops approximately 230 feet in its 3.5 mile course. Zoli Aff. at ¶ 7. There also is a series of dams constructed on La Chute River. See Zoli aff. at ¶ 9; see also People v. Systems Properties, Inc., 281 A.D. 433, 437 (3d Dep't 1953), modified and affirmed, 2 N.Y.2d 330 (1957) (striking the finding that La Chute River is navigable). Zoli further notes that "[t]he 'Chute' is not navigable for most of its distance, dropping several hundred feet as it winds its way through the present day Village of Ticonderoga, over a series of tall water falls. . . ." Id. The location of the sinking of the Ethan Allan was in Lake George which is "separated from Lake Champlain, and therefore from any interstate or international waterway, by numerous impassable rapids, falls, and artificial dams." Zoli aff. at ¶ 14. There is some indication in the literature, which is not in the record in this case, that, historically, persons attempting to negotiate their way from Lake George to Lake Champlain would have to take their boats out of the water to get around the falls. The use of a portage, however, does not render otherwise non-navigable waters navigable. See LeBlanc v. Cleveland, 198 F.3d 353, 360 (2d Cir. 1999). The evidence submitted by Shoreline Cruise and Richard Paris, which has not been contradicted by the Lake George Steamboat Company, clearly demonstrates that Lake George does not unite with other waters to create a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.
In at least one situation, Congress has expressly declared that Lake George is non-navigable. See 33 U.S.C. § 59m. That statute provides that, for purposes of 33 U.S.C. § 403, relating to the obstruction of navigable waterways, Lake George is declared as non-navigable and, therefore, outside of § 403's scope. Of course, we are now dealing with Title 46 of the United States Code; not Section 403 of Title 33. The Lake George Steamboat Company cites 33 C.F.R. § 329 for a purported definition of what constitutes a navigable water of the United States. By its own words, however, that definition pertains to "authorities of the Corps of Engineers. It also prescribes the policy, practice and procedure to be used in determining the extent of the jurisdiction of the Corps of Engineers and in answering inquiries ...