             Case: 11-15060    Date Filed: 02/15/2013   Page: 1 of 17

                                                                        [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                        __________________________

                               No. 11-15060
                        __________________________

                     D.C. Docket No. 1:07-cv-00159-WLS

AQUA LOG, INC., a Georgia corporation,

                                                               Plaintiff-Appellant,

                                     versus

LOST AND ABANDONED PRE-CUT LOGS AND
RAFTS OF LOGS, lying on the bottom of a navigable
river within one (1) river mile of a point located at
31 degrees 10.177’ North Latitude and 84 degrees
28.122’ West Longitude,

                                                              Defendant-Appellee,

STATE OF GEORGIA,

                                                               Claimant-Appellee.

                        __________________________

                               No. 11-15076
                        __________________________

                      D.C. Docket No. 1:07-cv-00208-WLS
             Case: 11-15060    Date Filed: 02/15/2013     Page: 2 of 17



AQUA LOG, INC., a Georgia corporation,

                                                                 Plaintiff-Appellant,

                                     versus

LOST AND ABANDONED PRE-CUT LOGS AND
RAFTS OF LOGS, lying on the bottom of a navigable
river within one (1) river mile of a point located at
31 degrees 04.157 minutes north latitude and 84 degrees
30.746 minutes west longitude,

                                                                Defendant-Appellee,

STATE OF GEORGIA,

                                                                 Claimant-Appellee.

                        __________________________

                               No. 11-15078
                        __________________________

                      D.C. Docket No. 1:07-cv-00160-WLS

AQUA LOG, INC., a Georgia corporation,

                                                                 Plaintiff-Appellant,

                                     versus

LOST AND ABANDONED PRE-CUT LOGS AND
RAFTS OF LOGS, lying on the bottom of a navigable
river within one (1) river mile of a point located at
30 degrees 50.536’ North Latitude and 84 degrees
44.725’ West Longitude,


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                                                                         Defendant-Appellee,

STATE OF GEORGIA,

                                                                           Claimant-Appellee.

                              __________________________

                      Appeals from the United States District Court
                          for the Middle District of Georgia
                           __________________________

                                     (February 15, 2013)

Before TJOFLAT, COX Circuit Judges, and MOTZ, ∗ District Judge.

COX, Circuit Judge:

       These cases present a question that is almost as old as the doctrine of

admiralty jurisdiction itself. As Justice Daniel posed it in 1857, “[T]he inquiry is

naturally suggested, what are navigable waters?”                 Jackson v. The Steamboat

Magnolia, 61 U.S. (20 How.) 296, 320 (1857) (Daniel, J., dissenting). Today, we

answer that question as follows: a waterway is navigable for admiralty-jurisdiction

purposes if, in its present state, it is capable of supporting commercial activity.




       ∗
          Honorable J. Frederick Motz, United States District Judge for the District of Maryland,
sitting by designation.
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                       I. FACTS & PROCEDURAL HISTORY

       These consolidated appeals concern segments of two Georgia waterways—a

two river-mile stretch of the Flint River and a one river-mile stretch of Spring

Creek. The Flint River segment is bounded by a bridge at State Highway 37 at

Newton, Georgia at its northern end and Bainbridge, Georgia at its southern end.

The Flint River empties into Lake Seminole, which lies on the border between

Georgia and Florida. The Flint River south of Bainbridge is currently used in

interstate commerce, but the two river-mile stretch at issue here is not currently

used in interstate commerce. Spring Creek is a tributary of the Flint River.

(References in this opinion to the Flint River and Spring Creek should be

understood as only addressing the two river-mile stretch of the Flint River and the

one river-mile stretch of Spring Creek at issue in these cases.)

       Historically, commercial vessels used both the Flint River and Spring Creek

for transportation. The parties agree that the Flint River was used to transport

commercial vessels and that Spring Creek was capable of transporting commercial

vessels. Although currently there is no commercial activity on these waterways,

the parties agree that the Flint River and Spring Creek can, in their present states,

transport commercial vessels loaded with freight in the regular course of trade for

at least part of the year.


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       During the late nineteenth century and early twentieth century, loggers

transported their commercially harvested logs by floating them down rivers.

Inevitably, some of the logs sank to the bottom. Today, there is an increased

demand for these sunken logs because they produce superior furniture, flooring,

and musical instruments. Such submerged logs are at the heart of this appeal.

       Aqua Log, a company that finds, removes, and sells submerged logs, has

located a number of submerged logs that have been abandoned by their original

owners at the bottom of the Flint River and Spring Creek. Aqua Log estimates that

there are hundreds of submerged logs at the bottoms of the waterways.

       Aqua Log, through its president, has located and removed two logs from the

Flint River, using the Flint River to transport the logs. It has also removed one log

from Spring Creek, using Spring Creek to transport that log. Aqua Log wishes to

remove all of the submerged logs and sell them.

       So, in August 2007, Aqua Log, invoking the court’s admiralty1 jurisdiction,

brought three in rem actions2 seeking a salvage award for the logs or, in the

alternative, an award of title to the logs based on the American Law of Finds. The



       1
         The terms “admiralty” and “maritime” are “virtually synonymous.” Bryan Garner, A
Dictionary of Modern Legal Usage 29 (2d ed. 1995). We therefore use the terms
interchangeably.
       2
        Case No. 11-15060 and Case No. 11-15076 involve the Flint River, while Case No. 11-
15078 involves Spring Creek.
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State of Georgia intervened and claimed ownership of the logs. Georgia moved for

summary judgment, arguing that the court lacks subject-matter jurisdiction because

the Flint River and Spring Creek are not navigable waters. The district court

agreed and granted summary judgment in favor of Georgia. Specifically, the court

held that a waterway is only navigable for admiralty jurisdiction purposes when

there is evidence of present or potential commercial activity on that waterway.

Finding that no commercial activity currently occurs on the Flint River and Spring

Creek and that Aqua Log failed to present evidence of any planned commercial

activity, the court determined that it lacked subject-matter jurisdiction and granted

summary judgment in favor of Georgia. Aqua Log appeals.

                              II. ISSUES ON APPEAL

      This appeal presents two issues: first, whether the district court erred in

requiring evidence of present or planned commercial activity on a waterway for it

to be considered navigable for admiralty-jurisdiction purposes; and second,

whether the Flint River and Spring Creek are navigable waterways.

                          III. STANDARD OF REVIEW

      Georgia raised the issue of subject-matter jurisdiction in its motion for

summary judgment. Subject-matter jurisdiction, however, is more appropriately

addressed in a motion to dismiss pursuant to Federal Rule of Civil Procedure


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12(b)(1). As a result, we will treat the district court’s grant of summary judgment

for lack of subject-matter jurisdiction as a dismissal under Rule 12(b)(1). See

United States v. Blue Cross & Blue Shield of Ala., Inc., 156 F.3d 1098, 1101 n.7

(11th Cir. 1998) (treating a district court’s grant of summary judgment for lack of

subject-matter jurisdiction as a dismissal under Rule 12(b)(1)). We review de novo

the district court’s dismissal for lack of subject-matter jurisdiction.   Broward

Gardens Tenants Ass’n v. U.S. Envtl. Prot. Agency, 311 F.3d 1066, 1072 (11th Cir.

2002).

                     IV. CONTENTIONS OF THE PARTIES

      Aqua Log contends that the district court applied the wrong test to determine

navigability and asks us to adopt a test that defines navigable waters as those

waters that are merely capable of being used for commercial purposes. If we adopt

that test, Aqua Log contends, then the Flint River and Spring Creek are navigable

waterways, and the district court has subject-matter jurisdiction.

      Georgia, on the other hand, urges us to adopt the district court’s test for

navigability—that a waterway is navigable only if it currently supports commercial

activity or if there is evidence of planned commercial activity on that waterway.

And because the Flint River and Spring Creek do not currently support commercial




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activity and no such activity is planned, the district court properly concluded that

the waterways are not navigable and that it lacked subject-matter jurisdiction.

                                  V. DISCUSSION

      The Constitution delegates jurisdiction over admiralty cases to the federal

courts. U.S. Const. art. III, § 2. This power is codified in 28 U.S.C. § 1333(1),

which gives Article III courts “original jurisdiction . . . of . . . [a]ny civil case of

admiralty or maritime jurisdiction.” Federal admiralty jurisdiction extends to all

navigable waters. Ex parte Garnett, 141 U.S. 1, 15, 11 S. Ct. 840, 843 (1891);

Grant Gilmore, Jr. & Charles L. Black, The Law of Admiralty 31–32 (2d ed. 1975)

(“[T]he admiralty jurisdiction of the United States extends to all waters, salt or

fresh, with or without tides, natural or artificial, which are in fact navigable in

interstate or foreign water commerce.”). Thus, for a court to have admiralty

jurisdiction, the body of water in question must be navigable. Both Aqua Log and

Georgia agree that for the court to have admiralty jurisdiction in these in rem

actions, the waterways where the res (the submerged logs) are located must be

navigable.

      Aqua Log seeks a salvage award for the submerged logs or, in the

alternative, title to the logs. Aqua Log contends that if the court does not have

admiralty jurisdiction, then it will not be able to pursue its claims, which are


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unique to maritime law. For the court to have admiralty jurisdiction, the Flint

River and Spring Creek must be navigable. Thus, we must decide (A) what test

applies to determine the navigability of a waterway for admiralty-jurisdiction

purposes and (B) whether the Flint River and Spring Creek meet that test. We

address each issue in turn.

                                               A.

       We first consider what test applies to determine if a body of water is

navigable for admiralty-jurisdiction purposes. 3 The parties have not called to our

attention any Eleventh Circuit precedent addressing this issue.

       The district court defined navigable waters as those waters with evidence of

present or potential commercial activity.           Relying on Seymour v. United States,

744 F. Supp. 1161 (S.D. Ga. 1990), the court reasoned that the purpose of

admiralty jurisdiction is to promote and protect commercial activity and that, in the

absence of such commercial activity, the federal interest in protecting and

promoting commercial activity no longer exists. And so, according to the district




       3
         We note that the term “navigable” has different meanings in different contexts. Kaiser
Aetna v. United States, 444 U.S. 164, 170–72, 100 S. Ct. 383, 388–89 (1979). In this case, we
are concerned only with term as it used to establish the limits of the jurisdiction of the federal
courts over admiralty and maritime cases.
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court, admiralty jurisdiction should extend only to those waterways with present or

planned commercial activity.

      The district court’s opinion is well-reasoned, but we respectfully disagree

with the court’s holding. And, we are not writing on a clean slate. We are bound

by the Fifth Circuit’s decision in Richardson v. Foremost Ins. Co., 641 F.2d 314

(5th Cir. Apr. 1981), aff’d sub nom. Foremost Ins. v. Richardson, 457 U.S. 668,

102 S. Ct. 2654 (1982). The Fifth Circuit decided Richardson on April 2, 1981,

and under our precedent, Fifth Circuit cases decided before October 1, 1981, bind

us. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

      In Richardson, the Fifth Circuit addressed whether a tort claim based on a

collision between two pleasure boats on a waterway that was “seldom, if ever, used

for commercial activity” fell within the federal courts’ admiralty jurisdiction. 641

F.2d at 315–16. The court noted that for admiralty jurisdiction to exist in a tort

case, two requirements must be met: (1) there must be a significant relationship

between the alleged wrong and traditional maritime activity (the nexus

requirement) and (2) the tort must have occurred on navigable waters (the location

requirement). Id. at 315. Concluding that both requirements had been met, the

Fifth Circuit held that the district court had admiralty jurisdiction over the tort

claim. Id. at 316. The court determined that the nexus requirement had been met


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because boats “are engaged in traditional maritime activity when a collision

between them occurs on navigable waters.” Id. As to the location requirement, the

court concluded that the tort occurred on navigable waters even though the

waterway was seldom, if ever, used for commercial activity. Id. Specifically, the

court said:

       We note additionally from the record that the place where the accident
       occurred is seldom, if ever, used for commercial activity. That does
       not cause us to vary from our holding. . . . It would be introducing
       another note of uncertainty to hold that admiralty jurisdiction extends
       only to a stretch of navigable water that presently functions as a
       commercial artery. . . . If the waterway is capable of being used in
       commerce, that is a sufficient threshold to invoke admiralty
       jurisdiction.

Id. We are bound by this holding.4 And the fact that Richardson considered

whether admiralty jurisdiction extends to a tort case does not change this

conclusion. Whether in a tort case or in a salvage case, the waterway at issue must

be navigable.




       4
         The Fifth Circuit’s definition of navigability is a holding. A holding is both the result of
the case “and those portions of the opinion necessary to that result.” United States v. Kaley, 579
F.3d 1246, 1253 n.10 (11th Cir. 2009) (quoting Seminole Tribe of Fla. v. Florida., 517 U.S. 44,
67, 116 S. Ct. 1114, 1129 (1996)). The Fifth Circuit concluded that the district court erroneously
dismissed the tort case for lack of subject-matter jurisdiction. To reach this result, it had to
determine that both requirements for admiralty jurisdiction over tort cases—the nexus and
location requirements—were met.
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       Neither Georgia nor the district court undertakes to distinguish this holding

in Richardson. 5 Instead, Georgia and the district court rely on cases from three of

our sister circuits that they argue support a test for navigability that requires

evidence of present or potential commercial activity. Specifically, they point to the

Seventh Circuit’s decision in Chapman v. United States, 575 F.2d 147 (7th Cir.

1978) (en banc), the Eighth Circuit’s decision in Livingston v. United States, 627

F.2d 165 (8th Cir. 1980), and the Ninth Circuit’s decision in Adams v. Montana

Power Co., 528 F.2d 437 (9th Cir. 1975). Georgia and the district court read these

cases as adopting a test for navigability that requires current commercial activity.

But each case also contains language that suggests they adopt a test for navigability

that looks to whether the waterway at issue is simply capable of supporting

commercial activity.       See Livingston, 627 F.2d at 169–70 (“[T]he concept of

‘navigability’ in admiralty is properly limited to describing a present capability of

waters to sustain commercial shipping.” (emphasis added)); Chapman, 575 F.2d at

151 (“We hold that a recreational boating accident does not give rise to a claim

within the admiralty jurisdiction when it occurs on waters that . . . are not in fact

used for commercial navigation and are not susceptible of such use in their present



       5
         While we agree with the district court that Richardson primarily focused on the nature
of the action and actors, Richardson nevertheless addressed the character of the water where the
tort occurred and we are bound by that holding.
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state.” (emphasis added)); Adams, 528 F.2d at 439 (“A waterway is navigable

provided that it is used or susceptible of being used as an artery of commerce.”

(emphasis added)).

      Nevertheless, even if these cases are understood to mean what the district

court and Georgia suggest, there is substantial precedent to the contrary in our

sister circuits. See Cunningham v. Dir., Office of Workers’ Comp. Programs, 377

F.3d 98, 108 (1st Cir. 2004) (noting that for admiralty-jurisdiction purposes,

navigability is understood to describe a present capability of a waterway to sustain

commerce); LeBlanc v. Cleveland, 198 F.3d 353, 359 (2d Cir. 1999) (looking to

whether the waterway is “presently used, or is presently capable of being used, as

an interstate highway for commercial trade” in determining whether it is

navigable); Price v. Price, 929 F.2d 131, 134 (4th Cir. 1991) (adopting a test that

considers whether the body of water at issue is capable of supporting commercial

activity); Finneseth v. Carter, 712 F.2d 1041, 1044 (6th Cir. 1983) (considering

whether the waterway “is used or capable or susceptible of being used as an

interstate highway for commerce” when deciding whether it is navigable).

      On appeal, Georgia argues that a test for navigability that looks to whether

there is evidence of current or planned commercial activity on the waterway strikes

the appropriate balance between protecting commercial maritime activity and


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respecting the ability of the states to regulate their own affairs by not applying

substantive maritime law (which applies when admiralty jurisdiction is invoked) in

the absence of actual commercial activity.

      While sound policy reasons support the test proposed by Georgia, the

navigability test announced in Richardson is supported by equally sound policy. A

test for navigability that looks to whether a waterway is capable of supporting

commercial activity promotes and encourages maritime commerce.

      The primary focus of maritime law is to protect and encourage commercial

maritime activity. See Sisson v. Ruby, 497 U.S. 358, 367, 110 S. Ct. 2892, 2898

(1990) (“The fundamental interest giving rise to maritime jurisdiction is ‘the

protection of maritime commerce.’” (quoting Foremost Ins. Co. v. Richardson, 457

U.S. 668, 674, 102 S. Ct. 2654, 2658 (1982))). When admiralty jurisdiction is

invoked, a uniform body of federal maritime law applies. Yamaha Motor Corp.,

U.S.A. v. Calhoun, 516 U.S. 199, 206, 116 S. Ct. 619, 623 (1996) (“With admiralty

jurisdiction . . . comes the application of substantive maritime law.” (quoting E.

River S.S. Corp. v. Transamercia Delavel Inc., 476 U.S. 858, 864, 106 S. Ct. 2295,

2298–99 (1986))). This body of law serves to protect commercial activity by

ensuring that uniform rules of conduct are in place. Exec. Jet Aviation, Inc. v. City




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of Cleveland, 409 U.S. 249, 269–70, 93 S. Ct. 493, 505 (1972). The Supreme

Court has said:

      The law of admiralty has evolved over many centuries, designed and
      molded to handle problems of vessels relegated to ply the waterways
      of the world, beyond whose shores they cannot go. That law deals
      with navigational rules—rules that govern the manner and direction
      those vessels may rightly move upon the waters. When a collision
      occurs or a ship founders at sea, the law of admiralty looks to those
      rules to determine fault, liability, and all other questions that may
      arise from such a catastrophe. Through long experience, the law of
      the sea knows how to determine whether a particular ship is
      seaworthy, and it knows the nature of maintenance and cure. It is
      concerned with maritime liens, the general average, captures and
      prizes, limitation of liability, cargo damage, and claims for salvage.

Id. Finding admiralty jurisdiction when a waterway is capable of supporting

commercial activity creates a “climate conducive to commercial maritime

activity.” Finneseth, 712 F.2d at 1046. That is, commercial activity could begin

on such a waterway and immediately have uniform rules in place without having to

determine whether commercial activity currently takes place on that waterway.

      Moreover, a test for navigability that requires actual commercial activity is

unpredictable and is therefore not conducive to maritime commerce. If actual

commercial activity is the test, the application of substantive maritime law

becomes contingent on the presence or absence of commercial activity. Price, 929

F.2d at 133–34 (“Rules governing conduct on navigable waters cannot remain

uniform or have any certainty if their applicability is dependent on whether, on any
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given day, commercial maritime activity is being conducted on the waters.”). A

test that requires evidence of actual or likely commercial activity fails to provide

the predictability that encourages maritime commerce. And predictability in the

courts is valuable.

        We are mindful that the Richardson test may expand admiralty jurisdiction

into waterways that may never be used for commercial maritime activities.

However, the broad federal interests in protecting and promoting maritime

commerce justify this potential encroachment. “If the waterway is capable of

being used in commerce, that is a sufficient threshold” to conclude that it is

navigable for admiralty-jurisdiction purposes. Richardson, 641 F.2d at 316.

                                     B.

      We next address whether the Flint River and Spring Creek are capable of

supporting commercial activity and are therefore navigable waters. We easily

answer this question because both Aqua Log and Georgia agree that the Flint River

and Spring Creek are capable of supporting commercial activity. (See No. 11-

15078, Dkt. 43-1 at 3; No. 11-15076, Dkt. 60-11 at 2; No. 11-15060, Dkt. 65-19 at

2.)   Therefore, we conclude that these are navigable waters for admiralty-

jurisdiction purposes.




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                                     VI. CONCLUSION

       Because the segments of the Flint River and Spring Creek at issue in these

cases are capable of supporting commercial activity, they are navigable waters for

admiralty-jurisdiction purposes. We therefore hold that the district court erred in

concluding that the waterways are not navigable and dismissing these cases for

lack of subject-matter jurisdiction on that ground.6            Accordingly, we reverse and

remand for proceedings consistent with this opinion.

       REVERSED AND REMANDED.




       6
          The district court decided it lacked subject-matter jurisdiction solely on the basis that
the Flint River and Spring Creek are not navigable waters. We express no opinion on whether
there are any other requirements necessary for its claims to fall within federal admiralty
jurisdiction.
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