Category Archives: American Legal History

Hon. Joseph Hampton Moore, president of the Atlantic Deeper Waterways Ass’n

Hon. Joseph Hampton Moore, mayor of Philadelphia, congressman, and founder of the Atlantic Deeper Waterways Association.

Hon. Joseph Hampton Moore, mayor of Philadelphia, congressman, and founder of the Atlantic Deeper Waterways Association.

Unquestionably the ‘Father’ of the Atlantic Intracoastal Waterway, in 1907 Congressman J. Hampton Moore sponsored a bill to direct the Corps of Engineers to survey the Delaware River in his district for much needed deepening.

Bills dealing with such questions were referred to as Rivers and Harbors bills and were passed, generally, every few years instead of every year.  These bills dealt with the rivers and harbors in a piece-meal fashion pitting one state or congressional district against another. Moore’s bill went down in flames, competing with bills from other states and districts with stronger congressional representation.  In his first term in Congress, Moore could not understand why his bill, which sought only a survey for deepening, went down in defeat.

Moore devised a plan to stop governmental bureaucracy from pitting one state against another when a continuous inland waterway from Maine to Florida was needed. Moore called a meeting in Philadelphia in 1907 to form the Atlantic Deeper Waterways Association. Every Governor, Senator, House member, and interested Mayor from Maine to Florida was invited. It would be an ‘all for one’, and ‘one for all’ proposition calling upon Congress to appropriate $50 million a year for ten years.

Attendees would elect Moore president of the the ADWA for forty straight years until the job was done. A continuous protected inland waterway under federal control from Florida to Norfolk, Va., would not be completed until 1935, along with the Cape Cod Canal and other Atlantic coast inland waterways although not necessarily continuously protected by sufficiently large barrier islands, as in Florida.

Moore’s job had been accomplished. The ‘all for one’ plan worked. For much of the distance the inland waterway was at least 125 feet wide and at least 10 feet deep. Joined in the work was John Humphrey Small, a Member of Congress and for a time Chairman of the Rivers and Harbors Committee.  More important, while Moore was a Philadelphia Republican, Small was a North Carolina Democrat. For years, the two formed an unbeatable combination in Congress on the question of an Intracoastal Waterway.

Before eminent domain: the writ of ad quod damnum

Dr. John D. Westcott (1807-1889), Surveyor General of Florida (1855) Pres. Florida canal company (1881-1889). Courtesy, Museum of the Confederacy, Richmond, Va. (Carte d' visite).

Dr. John D. Westcott (1807-1889), Surveyor General of Florida (1855) Pres. Florida canal company (1881-1889). Courtesy, Museum of the Confederacy, Richmond, Va. (Carte d’ visite).

Florida did not become a state until 1845. In the Treaty with Spain in 1819, the East and West Floridas would become the Territory of Florida under federal jurisdiction in 1821 until the “territory” became a “state” under the United States Constitution. Most of the meager population inhabited the extreme northern portion of the territory. The Everglades would not even be surveyed by the federal government until 1910.

It was still the Wild West in the Sunshine State. After the Civil War, there were still few settlers in south Florida because there was no means of transportation. Nevertheless, as early as 1838, entrepreneurs applied to the governor and the territorial council for charters to construct and operate railroads and inland waterways as private corporations. After 1845, the procedure changed little.

Applications were made to the new State Legislature. Until the Legislature passed a general corporation act permitting persons to apply for and receive charters pro forma if certain requirements were met, applying for and receiving charters to conduct business as corporations remained a cumbersome and political procedure.

Before and after statehood but before the passage of eminent domain law permitting certain public bodies given such power to take property under judicial supervision, railroad and canal companies enjoyed the special privilege of the ancient writ of ad quod damnum. Upon unilaterally deciding that it was necessary for one or both of these two types of transportation companies to extend a railroad or canal through private property, in the absence of mutual agreement on the price of the taking, a railroad or canal company could apply for a writ to the local county judge, who, in turn would empanel twelve residents to determine the value of the taking.

As soon as the company paid the sum determined, the proceedings ended and the company could extend its railroad or canal work on private property, without the usual delays, convoluted legal procedures, and payment of exorbitant attorney’s fees. In 1881, a financially destitute State of Florida agreed to incorporate four St. Augustine entrepreneurs to dredge what would become the Florida portion of the Intracoastal Waterway for a million acres of east coast state land and the right to collect tolls upon the waterway’s completion in 1912.

President Theodore Roosevelt operating a Dredge in the Culebra Cut of the Panama Canal

Pres. Theodore Roosevelt operating what appears to be a dipper elevator dredge in the Culebra Cut in 1906,

Pres. Theodore Roosevelt operating what appears to be an elevator dredge in the Culebra Cut in 1906.

The Culebra Cut was the most difficult of all the dredging operations in the digging of the Panama Canal.  Capt. David Gaillard, of French Hugenot ancestry, was chief of dredging operations at the Cut and a cousin of Henry Gaillard.  Henry had been one of the four original incorporators of the Florida canal company, the longest serving director, and a St. Augustine state senator.  Henry’s political importance in securing the million acres of state land promised for dredging what would become the Intracoastal Waterway cannot be overstated.  Without Henry’s political clout after the death of Dr. John Westcott, it is doubtful the company would have been successful.

The Culebra Cut was essentially a cut through a solid mountain.  So arduous was the work, including dynamiting and the building of a railway to remove the rock and debris, it left David a broken man.  David was hospitalized for the balance of the Panama Canal work.  He died before the opening ceremonies. Here, Roosevelt operates an elevator dredge, which required level ground and the laying of railway steel and wooden ties.  The Florida canal company used elevator dredges in the northern extension of the Florida waterway from St. Augustine to Jacksonville.  Courtesy, Library of Congress, American Memory.

May an indefinitely moored houseboat be subject to federal maritime jurisdiction?

Lozman houseboat in transit.

Lozman houseboat in transit.

Several years ago, the City of Riviera Beach (“the City”) straddling the Intracoastal Waterway (ICW) in Florida, arrested a houseboat under federal maritime law and demolished it. The homeowner, Mr. Lozman had lived on his houseboat for more than a dozen years under a lease with the City. The City had sent Lozman several eviction notices for deficiencies in the houseboat and failure to make certain payments.

The District Court of the Southern District of Florida found that the houseboat was a “vessel” for purposes of admiralty jurisdiction, that the vessel was delinquent in payments, put the vessel up for auction, the City bought it for the amount of its judgment and demolished it.

The court held that the houseboat met the definition of a “vessel”within the meaning of 1 U.S.C. s. 3; accordingly, federal maritime law applied despite the fact that the houseboat had been an “indefinitely moored” structure. It was still “capable” of transportation.

The Eleventh Circuit Court of Appeals agreed with the District Court’s holding that Lozman’s houseboat constituted a “vessel” for purposes of maritime jurisdiction and that Lozman’s houseboat “trespassed” upon city property.

On January 15, 2013, the Supreme Court reversed. The Court held that Lozman’s houseboat was not a “vessel” for purposes of invoking maritime jurisdiction. Except for the fact that it floated upon the water, Lozman’s houseboat had no means of self-propulsion, no steering mechanism, an unraked hull, no means of storing or generating electricity, and no realistic means of transporting passengers or cargo.

Onlookers observe Lozman houseboat moored at Riviera Beach docks.

Onlookers observe Lozman houseboat moored at Riviera Beach docks.

Federal courts therefore have no jurisdiction over “houseboats” similarly configured and indefinitely moored. In general, federal courts have exclusive maritime jurisdiction over “vessels” like boats in navigable waters such as the Intracoastal Waterway. Although federal jurisdiction protects those who improve and work on boats by affording workers the right to arrest a vessel for unpaid work and enforce a lien for such charges as well as the right to seek damages for trespass on private property, asserting federal jurisdiction also brings into play the regulatory powers of the Coast Guard to insure public safety as well as other agencies working to protect the environment and other public interests.

St. Augustine’s anchoring and mooring pilot program tested | StAugustine.com

St. Augustine’s anchoring and mooring pilot program tested | StAugustine.com.

Under a state pilot program, St. Augustine enacted an ordinance requiring boats to moor at least fifty feet from the navigable channel of the Intracoastal Waterway. One man who has lived aboard his sailboat for eleven years filed suit challenging the law in federal court.

Under federal maritime law, the federal government has the right to establish mooring rights within the Intracoastal Waterway and its tributaries. The federal supremacy clause makes federal law the supreme law of the land.

Generally, regulation of the use of the Intracoastal Waterway depends upon whether or not the federal government has preempted state and local law by enacting federal law over various uses of the waterway. However, the State of Florida owns the bottom lands of the Waterway by right of sovereignty under federalism. Unless the federal government intervenes in various uses, local governments may set speed limits for marine vessels, for example, transiting the waterway.

Court watchers await the final decision of the United States Supreme Court if the matter reaches that level of judicial authority. The author of this blog believes the federal government will prevail. In the absence of a uniform federal law on mooring, the author envisions scores of municipalities each with a confusing mishmash of differing mooring laws along the waterway.

The Atlantic Deeper Waterways Association and Congressman J. Hampton Moore

imageAt the turn of the last century (1895-1920s), something of a renaissance occurred in the political will of the Nation in the demand for inland waterway transportation.  More than thirty citizens groups coalesced from all over the country to demand waterway construction to challenge not only the confiscatory tariffs charged by the railways but also to address the shortage of railway cars available to ship freight and carry passengers across the country.  Among these citizen groups were the National Rivers and Harbors Congress (NRHC) and the Atlantic Deeper Waterways Association (the ADWA), both of which formed in the early 1900’s.

A first-term Republican congressman representing Philadelphia, Joseph Hampton Moore sought funds to deepen a portion of the Delaware River.  His colleagues voted the bill down.  So resolute was Moore in finding some way to acquire these funds that he spearheaded the organization of the ADWA in Philadelphia in 1907.  Five hundred governors, congressman, other political leaders, as well as business leaders, and chamber of commerce representatives attended.  Instead of each state along the Atlantic seaboard separately applying for scarce funds under the Rivers and Harbors Act, Moore advocated a ‘one for all, all for one’ lobbying approach. No longer would states be pitted against each other by governmental bureaucracies distributing funds for improvements.  Within weeks, Moore introduced a bill in Congress to authorize the Corps of Engineers to survey a continuous inland waterway from Maine to Beaufort, N.C.

North Carolina congressman John Humphrey Small, ardent supporter of the ADWA.

North Carolina congressman John Humphrey Small, ardent supporter of the ADWA.

A few days later, North Carolina Democratic Congressman John Humphrey Small introduced a bill to authorize the extension of the survey southward from Beaumont, N.C. to Key West, Fla.  It would take until 1935 for the federal government to acquire and enlarge the largely privately owned inland tollways into a continuous, federally controlled, toll-free Atlantic Intracoastal Waterway from Miami, Fla., to Trenton, N. J., with the exception of a few miles.

The New Englanders and the bank administering Bradley’s estate finally saw a way out of the Florida waterway’s never-ending maintenance problems and the slow sale of Florida land.  They could sell the Florida East Coast Canal en masse to the federal government. It was only a matter of time.

Back to the future: The Great Dismal Swamp Canal

The oldest working canal still in existence, the Dismal Swamp Canal transits through naturalistic views of North Carolina and Virginia. This short video captures a history of the waterway three centuries long, beginning with some of the founders of the Nation making plans for a waterway between North Carolina and Virginia. [Tap the following to play video]