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Eleventh Circuit Wades into “Navigable Water”

By: Vanessa Palacio

It is a hot South Florida afternoon, clouds beginning to provide some shade with the promise of rain to come. Friends are out on a small boat in one of many canals that litter the landscape between homes, roads, and vegetation, providing drainage and flood control to a community built on what was once a river of grass. The boat approaches a bridge but, unknown to those aboard, there is a hidden danger lurking: a six inch water pipe blending into the surroundings. Suddenly, a passenger is stricken, knocked overboard.

Under most circumstances, a person injured on a boat in a waterway could seek redress in federal court, invoking the federal court’s admiralty jurisdiction, 28 U.S.C. § 1333, or in state court, under the statute’s “savings to suitors” clause. [1] This concurrent jurisdiction, in many cases, allows those injured to choose what they believe might be the best forum, depending on the relevant facts.

To invoke the federal court’s admiralty jurisdiction, a case like the one described above must satisfy two elements: (1) there must be a significant relationship between the alleged wrong and traditional maritime activity (known as the “nexus requirement”) and (2) the tort must have occurred on navigable waters (known as the “location requirement”).

Last month, the U.S. Court of Appeals for the Eleventh Circuit finally waded into the “navigable water” issue regarding admiralty jurisdiction in a similar case.[2] In a decision with the potential to affect those who suffer injuries in South Florida canals, Tundidor v. Miami-Dade County, the Court held that a canal that was not able to support interstate commerce was not “navigable water” as required to invoke a federal court’s admiralty jurisdiction under 28 U.S.C. § 1333.

The Eleventh Circuit’s decision makes clear that in South Florida—where there are many canals to assist with drainage and flood control—those injured in canals will not, in most cases, have the option of invoking a federal court’s admiralty jurisdiction.

Tundidor was a passenger in a vessel traveling on the Coral Park Canal, a secondary drainage canal approximately seven miles inland in Southwest Miami-Dade County. While boating on the canal, he was struck on his forehead and face by a six-inch water pipe running parallel to a canal bridge, and ejected from the vessel and into the canal waterway. Paramedics found him unresponsive and he was diagnosed with multiple fractures, loss of vision, blunt chest trauma, acute lung injury, acute respiratory failure, and hemorrhagic shock at Kendal Regional Medical Center.

The canal itself is only connected to the Tamiami (or C-4) Canal by a low bridge not intended or designed for use by vessels. A large, artificial water control structure with signage prohibiting boating prevents any possible access to the Miami River, Biscayne Bay, or Atlantic Ocean through the C-4 Canal

The Eleventh Circuit followed “[e]very circuit court to consider the issue”[3] agreeing with the reasoning of the Ninth Circuit in Adams v. Montana Power Co., 528 F.2d 437, 440-41 (9th Cir. 1975). That is, if enclosing a waterway “has the practical effect of eliminating commercial maritime activity, no federal interest is served by the exercise of admiralty jurisdiction over the events transpiring on that body of water, whether or not it was originally navigable.”[4]

The decision makes clear that those injured, like Tundidor, in many of South Florida’s canals are limited to seeking recourse in state court, and will not be able to look to federal courts in admiralty.



[1] See U.S. Const. art. III, § 2; 28 U.S.C. § 1333 (1) (federal district courts have original jurisdiction of  “Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”)

[2] Tundidor v. Miami-Dade County, No. 15-12597, 2016 WL 4119834 (11th Cir. Aug. 3, 2016).

[3] Tundidor, 2016 WL 4119834 at *3.

[4] Id. at 440.

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