”Navigable waters” is a technical term with regulatory definition under the Code of Federal Regulations relative

 to the authority of the United States Army Corps. of Engineers. See, 33 CFR, Part 329 - Definition Of Navigable

 Waters Of The United States. The general definition is:

Navigable waters of the United States are those waters that are subject to the ebb and flow

 of the tide and/or are presently used, or have been used in the past, or may be

susceptible for use to transport interstate or foreign commerce. A determination of

navigability once made, applies laterally over the  entire surface of the waterbody,

and is not extinguished by later actions or events

which impede or destroy navigable capacity.

33 CFR, §329.4; see, for context,  33 CFR, §329.1. Other statutory or regulatory definitions exist.  For instance,

The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22250–01

(April 21, 2020). Such are not germane to this discussion.

           The concept of “Navigable Waters” in the general maritime law is more narrowly defined. For instance:

 For admiralty purposes, the concept of "navigability" is generally understood to describe

"a present capability of waters to sustain commercial shipping," or "contemporary navigability

in fact," Livingston v. United States, 627 F.2d 165, 169-70 (8th Cir. 1980). See also

 Kaiser Aetna v. United States, 444 U.S. 164, 171-72, 62 L. Ed. 2d 332, 100 S. Ct. 383 [**23]

(noting the varying definitions of "navigable waters" for different contexts);

The Robert W. Parsons, 191 U.S. 17, 26, 48 L. Ed. 73, 24 S. Ct. 8 (1903)("the modern doctrine"

is that "the actual navigability of the waters[] is the test of jurisdiction")

Cunningham v. Dir., OWCP, 377 F.3d 98, 108 (1st Cir. 2004).

Although state law may regulate ferries as common carriers, or tour boats as livery, any personal

injury, estate’s survival or wrongful death claims arising from vessel operations-connected will be

controlled by the general maritime law.

The [United States] District Court was in error in ruling that the governing law in this case

 was that of the State of New York. Kermarec was injured aboard a ship upon navigable waters.

It was there that the conduct of which he complained occurred. The legal rights and liabilities

arising from that conduct were therefore within the full reach of the admiralty jurisdiction and

measurable by the standards of maritime law.

Kermarec v. Compagnie Générale Transatlantique, 358 U.S. 625, 628 (1959).

Even in state court-based law suits, admiralty caselaw and federal regulations applicable to the circumstances of

loss will be applied instead of state caselaw or state regulations. California court: Schlessinger v. Holland Am.,

120 Cal. App. 4th 552, 557, 16 Cal. Rptr. 3d 5, 9 (2004). Florida court: Nicoll v. Magical Cruise Co., 110 So. 3d 98, 99

(Fla. Dist. Ct. App. 2013).

There are exceptions, which may arise such as when the death occurs within three nautical miles of U.S. territory.

See, Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996)[State law may expand roster of whom may claim]. 

Additionally, courts may apply state law regulations to marine insurers when such does not interfere with

established admiralty law or the need for nationwide uniformity of law. Wilburn Boat Co. v. Fireman’s Fund

Insurance Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337, 1955 A.M.C. 467 (1955).

What duty does a vessel owner or operator owe to the passenger? The answer is:

We hold that the owner of a ship in navigable waters owes to all who are on board

 for purposes not inimical to his legitimate interests the duty of exercising reasonable

 care under the circumstances of each case.

Kermarec v. Compagnie Generali Transatlantique, 358 U.S. supra, at 632; emphasis added. In some instances

being aboard a vessel can be the same experience as being ashore (e.g., ballrooms) while walking down a shaky

 gangway is much different that walking out of a ballroom.

Therefore, “under the circumstances” results in vast caselaw. A discussion for another day.     

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.