Title: Navigation
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003093/00001
 Material Information
Title: Navigation
Physical Description: Book
Language: English
Publisher: President's Water Resources Policy Committee
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Navigation
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 11
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003093
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text

Chapter`


Navigation



"The power of Congress *compehends. naviga-
tioin within jthe limits of every State in the Union; so far as
that navigation may be, ip any manner, connected with 'com-
merce with foreign nations, or among the several States, or
with the Indian tribes.' Federal commerce power over nav-
igation includes authority to control not only all navigable
waters.of the United States, but also the nonnavigable reaches
of navigable waterways and their nonnavigable tributaries if
the navigable capacity of navigable waterways is affected or
if interstate commerce is otherwise affected.
Navigation has always been a principal use of navigable
waters, and Congress has enacted numerous laws directly or
indirect relating to water-borne transportation and com-
merce. ~For our purposes, those laws may be conveniently
divided into four categories. First, we shall consider those
statutes dealing directly with the use of waters for transpr-
tafioi purposes. Next comes a large body of legislation seek-
ing niaviatinn improvement of waterways. We shall then
examine a smaller number of statutes directed towardi pro
tection of navigable waters. A few, legislative provisions re-
lating t6 international boundary waters constitute the fourth
group -

Water-Borne Transportation

In addition to its inherent importance as an integral ele-
ment of our national economy, the transportation industry has
Gbbons v. Ogden, 9 Wheat. 1, 197 (U. S. 1824); see supra. pp. 9-10.
See aupra, pp. 15-17.







even broader significance in its service to and use by every
group in that economy. Moreover, it must be remembered
that transportation by watercraft isut' one aspect pf' a
enormous industry which also emplbs- carrieifby rfail by
road, by air, by pipe, and even by belt. For these reasons,
water-borne transportation cannot intelligently be appraised
in isolation from the industry as a whole. Therefore, while
theft necessities of 'timne and space require us ~d' attempt a
separate and briefid-nination of the irncipal features of
statutes dealing with thit use of navigable waters iii traspor-
tation of commerce, ft must not be assumed that the signifi-
cance of these lawi- an be assessed independently. On the
contrary, it would he'necessary to view them as interrelated
with laws governing other methods of transportation, and fur-
ther to evaluate their administration. The narrower purpois
of ouiir particularized survey is t demonstrate the extei~ t of
congressional attention to transportation as one of the .uses of
water resources.
'From the beginning of our history, domestic transportation
by water has been a matte of national concern. The Treaty
of Independence, for example, contains a provision assuring
that the Msissiippi River "shall forever remain free and open'
to citizens of the United States,,id the subjects of ,Great
Britain. Similarly, the Norlhweaj Ordinance, adopted dur-
ing the first session of the first Qongress, declared that: 4
The navigable waters leading into the Mississippi and
S Sti Lawrence, and the carrying places between the same,
shall be common highways, and forever free, as wpU to

SArt. VII, 8 Stat. 80, 88. See also Malloy, TBEATIE, CONVENTIONS, INTER-
NATIONAL ACTS, P5AofolW ur AeaMiiexa w6wix, *k UNITeD STATES OF
AacEnaa AND OTHEr POWWE: 1776-1909, Sen. Doc. No. 357, 61st Cong., 2d
seas., pp. 580, 583 (1910); Hill, LEADING AMEICAN TBEATIES, p.
(1981).
SAdopted by Act of August 7, 1789, 1 Stat. 50, 52. For opinions eoastru-
Ing this provision, see Escanaba Co. v. ChiMogo, 107 U. S. 678, 688-490
(1882); Huse v. Glover, 119 U. S. 548, 546-548 (1886); Sanda v. Manistee
River Improvement Co., 123 U. S. 288, 295-296 (1887); Harman v. Chicago,
14 UT. B. 396, 410-411 (1888) ; Economy Light Co. v. United States, 250 V. B.
113, 120-121 (1921).







the inhabitants of the said territory, as to the citizens
of the United States, and those of any other States that
:': y be admitted intd the confederacy, without iiiy Wta,
impost, or duty therefor
Likewise acts O'fCongress enabling the people of the terri ,qries
to fLrm. state government, and acts providing for the admis-
sion of new states contained declarations that navigable waters
shall be common highways and forever free." Corresponding
decorations that navigable waters shall be deemed "public
highways" appeared in various acts providing for the sale of
public lands in the territories.
i However, for many years tolls were charged by states and
private companies for passage through nonfederally owned
canals and through privately constructed navigation works.
Congress aided the states in the construction of canals by do-
nating ptiblid1'ids for the'canal'sites, and for sale in order t
obtain funds for waterway improvements. In such cases, it
provided that no tolls were to be charged for Government usq of
the canals. Congress further aided the developer ent of water-
ways by authorizing the Secretary of the T ieasuy to purcha
specified nube rsiof s areas of capital stock im analcompaies,

aSebea 4 Aqct oftApril 8, 1812, 1,: 2 Stat. 701, 70 (Loaslana;) ;;ACt of
MarehW, 48it 28: 2( ;Stat, 545 (Missouri):; Act of September 9,~ 850, 38,
9 Stat. 452 (Californi); ;Act of February 14, 1859, ,11 Stat, 883 (Oregon).
:e se C p ., Act ofhMay 18,-170, 19, 1 StatAB%4 460; Act t March S, 1803,
;I 17,2i ata a; 221 5;Acdt of Marth:2e, 1so80, 9 6,2 Stat 277T 279;:AtWtof
February 15,1811, 12, 2Stat17,621. .: ; .
* "'Oaail ftAi: Act'of MKrdAi 2;1827, 4 '8tat. 284 (Canal, Iflinois River to
Lake Michigan); Act of March 2, 1827, 4 Stat. 236 (Canal, Wabash River
to Laki Wh e); Act of August 8, 1846, 9 Stat. 7 (Deg Moihies Rer, Iowa);
Aet'of August 8,' 19, 9 tait. 8:8 (Wx and Wisconsin Rivers, Wisconsinf;
Act of Auguit 26, 1852, 1 Stat. 35 (Canal, St. Matya Pglls, Mtihigan); Act
of MarcS,- 1865, 18 Statt 819 (fai bor and Ship Canal, Portage Lake to
tLake iSuprior); Act of April 10, 1866, 14 Stat. 30 (Green Bay and Lake
Michigan Canal).
Waterway Improvements: Act of March 2, 1819, 6, 3 Stat. 489, 491
(Territory of Alabama) ; Act of March 14, 1826, 4 Stat. 149 (Mississippi) ;
Act of September 4, 1841, 9, 5 Stat. 453 (Ohio, Indiana, Illinois, Alabama,
Missouri, Mississippi, Louisiana, Arkansas, Michigan) ; Act of February 26,
1857, S 5, 11 Stat. 166, 167 (Territory of Minnesota).







the United States to receive its proportionate share of the tolls.8
These private canals later were acquired by the United States
and made toll free.9 Other nonfederal works of improvement
were donated to or acquired by the United States and made
toll free."0 In 1884, Congress adopted a prohibition-effective
today-against the levying of tolls upon watercraft passing
through any federal lbek, canal, canalized river or other work
for the use and benefit of navigation." Likewise, when it
later authorized nonfederal river and harbor improvements
subject to approval bythe Secretary of the Army and the Chief
of Engineers, Congress specifically declared that "no toll shall
be imposed on account thereof."
NAVIGATION AIDS AND RULES.-Reference should be made
here to the extensive legislative attention to the provision of
aids to, and rules for navigation. For example, on the sea and
lake coasts and on rivers of the United States, the United States
Coast Guard establishes and maintains navigation aids, such as
lighthouses, buoys, lights, radio beacons, and radio direction-
finder stations.18
Also, Congress-has made provision for rules for navigating
harbors and inland waterways,1" and at sea." In addition to
direct legislative prescription of many such rules, Congress has
empowered the Commandant of the Coast Guard to establish
*Act:of March 8, 185, 4 Stat. 124 (Chesapeake and Delaware Canal Co.);
Act of May 13, 1826, 4 Stat. 162 (Louisville and Portland Canal Co.);
Act of May 18, 1826, 4 Stat. 169 (Dismal Swamp Canal Co.).
SAct of March 3, 1873; I Stat. 560, 563; Act of May 11, 1874, I 3, 18 Stat.
43, 44; Act of May 18,:1880, 21 Stat. 141 (IMuisville and Portland Canal);
Act of March 2, 1919, 40 Stat. 1275, 1277 (Chesapeake and Delaware Canal) ;
Act of March 8, 1925, 43 8Stat. 1186 (Lake Drummond or:Dismal Swamp
Canal).
SAct of June 14, 1880,21 Stat. 180,189 (St. Marys Falls Canal, Michigan);
Actof June 3,1896, 29 Stat. 202, 217 (Monongahela River Improvements).
SAct of July 5, 1884, 23 Stat. 133, 147, as amended, 33 U. S.. 6. 5. This
Act in effect supersedes a similar prohibition of 1882 (August 2, 1882, 22 Stat.
191, 209). See also particularized exemptions from tolls codified in 33
U. S. C. 6-10. In the case of the Panama Canal, however, tolls are charged.
Act of August 24, 1912, 5, 37 Stat. 560, 562, as amended, 48 U. S. C. 1315.
SAct of June 13, 1902, 1, 32 Stat. 331, 371, 33 U. S. C. 565.
SSee 14 U. S. C., ch. 5 (Supp. III).
SSee 33 U. S. C., ch. 3.
See 33 U. S. C., ch. 2.







S eertia anscillaryrulo.1 Requirements are thus specified for
such matters as lights, sound signals for fog and speed in. fog,
steering and sailing rules and signals, and distress.signals. $ep-
arate but similar groups of provisions have been prescribed for
th. Great Lakes andetheir connecting, and tributary waters "
-aSd for the Red River of the North and rivers emptying into the
GOlf of Mexico and their tributaries." General regulations
.ave also been enacted :for such other matters as the dut$ies'f
ship officers and owners after collision ; 1 for summary trials for
certain offenses against navigation laws;20 and even for the sup-
pression of giray2 ,
I.: In49 Qongress made it unlawful to interfere with naviga-
tion aids established or maintained by the Coast Guaid, or to
anchor vessels in navigable waters so as to interfere with- apge

SFurthermore, Congress has delegated to the Secretary of th
Army general authority to establish and prescribe rules con-
cerning anchorage grounds for vessels in harbors and other
navigable waters, making the enforcement of such rules the
duty of theCoast Guard or of the Chief of Engineers where 9
Coast Guard vessel is available". On the other hand, t Coin-
mandat of the Coast Guard has the dyty, of markingachorae
grounds.2 And in the casetof PearliHarbor, the prescription of
anchorage rules is made the duty of theSperetary of the ,Navy.
SComplementing.the foregoing, Congress has delegated to the
Secretary of the Army general authority to prescribe regulations
for navigation of navigable waters "covering all matters

SAct of June 7, 8!9, 1 2,,30 Stat. 96, 102, as amended, 33 U. S. C. 157.
See 33 U. S. C., ch. 4.
m See 33 U. S. C., ch. 5.
'See 33 U. 8. C., ch. 6.
See 383 U. S. C., ch. 8.
SSee 38 U. S. ., c;h. 7.
2 Act of May 14, 1908, 6, 35 Stat. 10, 162, as amended, 33 U. S. C. 761.
SAct of March 4, 1915, 7, 38 Stat. 1049, 1058, as amended, 33 U. S. C. 471.
But such authority is vested in the Commandant of the Coast Guard as to
portions of the St. Marys River. Act of March 6, 1896, 5 1-3, 29 Stat. 54,
54-55, as amended, 33 U. S. C. 474.
SAct of September 15, 1922, 42 Stat. 844, as amended, 33 U. S. 0..472.
-"Act of August 22, 1912, 37 Stat. 328, 341, 33 0. S. C. 475.







net spleifally Idelegated 'by. law tb some other: -eetiatfl e-
pa-tment "' BiHe Iisiaeo expressly' powered to make naviga-
-toi rules in the base of the South aitd-Southwest Pa6a theoM
Mississippi Riher.i -Ffirtheriior, he has general authority to
presdribe'regulations:for the use and- haigation df navigable
waters endangered ot likely to be endangered :by target ripe-
4tieearteas obeied by accessories pertaining toW sdbast tFrti-
floations, or areas occupied by any plant engaged in the exeeld
tion of public navigation improvement.
InEoanneetionwith. transportation of explosives by water,
Congress has prescribed laws and has empowered the Com-
mandant of the Coast Guard, the Secretary of th Arrmy and
the~Interstate Commerce Commission to issue certain rules
relating, thereto. ", ". ","; .. "'";
REGULATION OF,WATER CARRIER.--While Congress has tius
fot inan y6ars made extensive provisions for rules governing
aviation, 'detailed regulation of water carriers themselves is
a iretiekly recent development. itndertl original 1887 Tn-
terstae Commeice Act, jurisdiction ver water barrierss W~s
confined to water'setiice Iendere under a' common agreement
ith railroads ahd was largely limited to rate :iatters. Soe
additional jurisdiction ver port-to-port rates was conferred
by' the Panama( Canal Act of'in9 '-In 1916 and in 1933,
lhnimted authbtity'Wr domestic #&tefi triaspeftatlibi was
vested inftheir niiedi States Shipping Board and was later
traisierrede- to the lUiited States Maritime Commission.:
In 1940, however, Congress enacted legislation for the regu-
lation of water carriers which bears a general similarity to the
regulatoijy shiei for rail and mo~to carriers. In o! doing,
it conferred upon the Interstate Commerce iiesi ~with
specified exceptions, jurisdiction over water carriers engaged
"Act of August 18, 1894, 4, 28 Stat. 838, 862, a' amended, 38.U. S .C. 1.
*"ActoflMar3h 8, 1Oa, 8:5 8Stat. s,8ai St,38 U3 S C.S2.
Act of July9, 110,8; 14A Stat. 845,.88 38 U. S.~. 8.
S ee4 4U. S. C.,,ob T; ,3tU.S. 3. 3; 18 US .0.383.
SAct of February4, 188T, 24 Stat. 379.
SAct of August 24, 1912, 11, 37 Stat. 560, 566, as amended, 49 U. S. C.
6 (11) .. .
"Act of Septeriwb r,7, W196,'9 Stat. 728, as amended. 46 U. 'S. 801 et
seq. See 46 U. S. 0. 804 note following.







in mt nsporttion, in-interstate or foreign onnuiauice, et~hd-
ing; to their tesu asrOrUee; Ilibtiekrraier; rdelaiom, and, ancii-
lsar iiateox ap .At he sae6tAm Goegmesa pinoqowioaedas 'n,
tiolIntas po$t.opirppoyl to gwprea *tlj lminiuraiqnand
e ~aeep4 o~ ,th Iterte ers Cote o rceo Act as it. applies o
ail larrers .Itia;t :, a
S- torprovide foe fair and impartial regulation dfirallrarn
,,. .of4ra orte~rn srabje to thepreviasions qthisdotM
-i ,. einite~ato~r~eop iaeandpie4rv~ h kinaees
:.. : a4spaF efa ; .to promote safe, adsequte, P eoE#W
ical, and efficient service and foster soun4 eQW~a pi CA9R
-tni diti q.u, I^anppet1p. gad a png.tJ seavra6er qrs;
to.. encopugi ,t i.establisuhneIt anddqaip4enapce,,Q
S reasopable charges for traneportation services, witout
unjust dscxi.inations, umdue preferences. or advaan
or unfair or destructive ve cpmptive practice to
cocaieata with. the siever States and the duly za lor-
Sied officials there: 'ab'dt enio uraig fairJwages and
equitable working conditions; all to &te end of devel-
I h ^ig, 0o0bidihal tit % ahdv&iig hsihbridF tifnspor-
S i~ion syate6l r tenf iighfiy a d retail' as well as
'1 6 m iaai adquate to m. i itt ibeds df'tlie com-
;,t,- -:of the tUh s States, -f the IPstal Srvice, and
10to :i, t ~ihnibaigtnh "tL Alb ~WF: pTd- 'iriti':of this
-nod 'ta1~d bead i atere atd' effied Vith' a view to
o^T *csrigyirtherMie abvdeolnte iontf -t*lky.'
"Act of September 18, 1940, 1 1, 54 Stat. 898, 929, 49 U. S. 90% et peq.
V trIarWW VfiMW's f tU S#r af '*e6WYOtM d ne dti PithreA4ithe
waterTeap .h ..49pBo o PePBt ,rieer 'B~ ,it da a eow aK
carrier by water" as "any person which holds itself out to the geasratpnhlic
to engage in the transportation by water p ~n.rtAe pr, fr co ere
of passengers or property or any class oreTaae tiereof for compenqtkon
*;" and a "contract carrier by water",pa p y other person. "wlieb,
under individual contracts or agreement, e.tagee Ih the transportation
by water of passengers or property In Interstate or foreign com-
merce for compensation." 802, 54 Stat. 930, 49 U. S. C. 902. 'he pres-
ence of contract carriers in water and motor transportation and the differ-
ingprovisions for their regulation are a principal 'source of distinction
between regulation provided for their~ and that regulation prescribed for
railroads.
8 1, 54 Stat. 899, 49 U. S. 0. 901 note preceding.
911611--51-7







-!.R4tes.--Ratesof omineniarrieamust be jUst, re.soPable,
and nondiscriminfory :But'differences in rates ofia '"ate
carried in respect of water transportation from those in effect
by a rail barrier with 'respect to' railtranspotItation"!b6r tl
presslr declared 'ior to onstitutb' tjt k^i ctifftiMatIif.
Water carriers must file and publish their rat~ iuiles, and regu-
latianswith the Commission, and.o changes therein may be
made ereipt- after a specified iote. li'; The .omminiion may
sdepend a hiew rWWat hen filed and enter upon ,, hearing con-
cerning its lawfubless.'- It miay also ives'igate thflA*fulness
of established rates'"' i '; .. .
The Commission is powered to fit the "madinmim r mini-
iuxn, or maximum and minimum" rate fdr a commonn carrier
by water." 'Asb,!Wituthoriked to require common Ca rriers
y water and cariers 'by railroad 'to etabloish through routes
sad joint rates, 'ad t6 determine just divisions of suh' rates."
In the exercise of its rate authority, the Commisson i required
tp give due considYerat o:,
.. to the effect of-ates up gw movement of tr.g by the
; carrier or Ianrers for wich,,tee rates are pre~qibed; to
;,the zeed, in t4pjb ip inteest ,f adequate 4,gefficient
water transportation service at4the lowest .cosconsistent
S with te ful ishijng of sue,;ige; ans14 thqpeed of
S revenues sifficinat, to eopbe iFater carriern under hon-
est, eng.pipe and eficient, manaement,, to provide
such service.
in' the ,Pafe of reQtract water amrsy the CoeMuisinauimay
fix reasonable mifnitiua rate, ,t hot a maximum rate. :,
SIMS0,N 54 8tat. 9a4, Qe lb.O005. '
iSof"a 54 tit.Gd, 4 U.s. c. o "
i SOSg, 54 Stat. 938,49 U. S. C. 907.'
"307, 54 Stat. 939,49. .. C. C. 907 .
'~ Td, 54 Stat. 937, 49 C. 907.
It 307, 54 Star. 937, 49 U. $. C. 907 and Jt of February 4, 1887. 5, j 24
Sta&'379, 380, as amended, 49 U. S. 6.
S807 f, 54 Stat. 938,49 U. S. C 907.
I 5 807h, 54 Stat. 99, 49 U. S.C.07 ,,, .: :







Moreover, in connection with competition between water and
rail carriers, it should be noted that it it unlawful for any coma
mon carrier by railroad or water:* : r
to charge or receive any greater compensation in the
Aggregate for the transportation of passengers, or of like
kind of property, for a shorter thai for a longer distance
S ovfer the same line or route in the same direction, the
-i 1 shorter being included within the longer distance, or to
charge any greater compensation as a through ra-e tMn
the aggregate of the intermediate rates *
The exceptions to this requirement allowed in special cases
"shall not permit the establishment of any charge to or from the
more distant point that is not reasonably compensatory for the
service performed; and no such authorization shall be granted
on account of merely potential water competition not actually
in existence." Whenever a carrier by railroad shall in com-
'petitionwith a water route reduce its rate to or from competitive
points, it shall not be permitted to increase such rates Unless
after hearing the Commission fnds the proposed increase rests
upon changed conditions "other than1 th elimination of waterr
competition."
Obigfatih to Serve.-It is the duty of every common ei.i-
rir by wate&, with respect to transportation' subject td the Act
which it undertakes of holds itself out to perform, or which it
isib4ttired by the Aet to perform, "to provide and furnish such
tranipor4ttion upon reasonable request."" By its nature, of
course, contract carrier service involves no similar requirement.
Certificates.-'By means of its authority to grant certifl-
cate9, the Commission controls, with some excetions, entry
into and exit from the business of common-carrier transport
tion by water. No common carrier by water may engage in
transportation subjectto the Act without a "certificate of public
Act of February 4, 1887, 4, 24 Stat. 379, 380, as amended by the Act of
June 18, 1910, 8, 36 Stat. 539, 547, as amended, 49 U. 8S C. 4(1).
6(a), 54 Stat. 904, 49 U. S. C. 4(1).
4 Act of February 28, 1920, 406,41 Stat. 456, 480, as amended, 49. C.
4(2).
805, 54 Stat. 9834,,49 U. S. C. 905.







convenience and-necai*y" issued by the Commission.48 Broad
-iscretion is vestediin thieComnimioa by the Act's requirement
that a certificate shall issue to am applicant only upon a Conm-
mission finding that the proposed serce "i* or wl.be requiredd
by the present or future public convenience and ecessity."
While a certificate must specify the.route over which a carrier
may operate and while the Commiasi I nay attach reasonable
cpnditions.to the eercise of the privileges granted by a certifi-
,cate, it is expressly provided that no limitatipps shall restrict
the carrier's right to,add to its equipment, facilities, or service
within the scope of such certificate, or its right: "
S to extend itsservices over uncompleted portions of water-
way projects now or hereafter authorized by Congress,
over the completed portions of which it already operates,
as soon as such uncompleted portions are open for navi-
gation.
I 4he e of contract carriers, th Comnmiasion. has similar
auihOrity through.its power to grant permits."
_, trcarrier Relat ins-Referenas has. already been xage
p t,,e prVovision for, tablishment, of through routes apd jouiqt
rates. Also noteworthy in this connection is a 1948 amend-
iment placing responsibility on the,Commiqsion to approve or
disapprove agrep un ,between two or more careers relating
to rates n4 certe ptoer matters,; parties to an appred
agreement are rieved from the operation o f thaentiust
1aws as to, the making and car"gnout of such agrmertV"
Likewise, extenive provisions cover combitips and qn-
solidations of caFr~r and other means of acquisition of opn-
trol.3 These provisions include a prohibition again o er-
ship or control by a railroad of any common carrier by watr
operating through the Panama Canal or elsewhere, with ihich
it does or niiy dmete, provision g 6 ii rde for exceptions
other tan in the case of a Panama Canal carrier. :
S309a, 54 Stat. 941, 49'U. S. 0. 909.
309c, 54 Stat. 942, 49 U. S. C. 909.
309d, 54 Stat 942, 49 U. S. C. 909.
S" so30e 54 stat. O92, 49 8.. 909.
SAct of June 17, 1948, 62 Stat. 472, as amended, 49 U. C. Sb (Supp. IIi).
"Act of February 4,1887, 5, 24 Stat 89 38, 8 s amended, 49 U. S. 0. 5.







Ancillry Matters.-,-Other prbvisioua include those relat-
ing to aceaonts, records and reports bycarriers; and investing
tiun enfioromenat and procedures "
Exemptions.-A nmanbe of dexmptions from tid~he ct awi
species, principal among which aere those for the transptr-
tatiqaon ocorinnodities in bulkE."-
WAra TEamnALr.--In 1918, Congress directed the Chief of
E -iaeers ,to submit ipeeial reports on terminal and transfer
fanitiest and to indicate in his Annual Reports the character
of such faieitis existing on every harb or waterway under
maintenance or impusvement by .he United StkteB, with a
stato ntas.to their, adequacy for, existing commerce." The
faolowug year Cpngrem declared its policy that water termi-,
nal are essatial at all pities and towns located upon harbors
or navigable waterways, and that "at least one public terminal
should exist, constructed, owned and regulated by the munici-
pality, or other public agency of the State and open to use of
all oi equal terms. or "This policy respecting water terminals
ius ak federal navigating iinprovement of rivers and harbors
&id er s~iatte wi'"h we hal lter examine."
'iMobr tjoreb has ilso provided that if tie public
ite'reni'Would l~ eot ioufly suffer by &eTay, the Secretary of
the Ainny 'may wi Iod ioney appropriate for further
improteuint of existing projects iinlss there are adequate
watei f~in o asiirances that iey il be proied.-
INzL4Dw WATEIwArp CoaPounox.-After almost 100 years
of federal improvement of pavigable waterways for commercial
use by others,"' in 1918 the Federal Govecmnent itself began
a limited commercial operation of boats and facilities on inland
w.terway. After the President had taken over transportation
SSee'4 U. L. 18 14, 16, 20
S|30Bi, 58 Bat. 61,. 40.U. 8.w.008.
,"A"t of July 1918., 7, 40 Stat. 904, 912, 88 U. 8.P0. SAW; see also
Act of June 5,1920, 8,41 Stat 988, 902, as amended, 46 U. S. 0. 867.
SAct of March 2, 1919, 1 1, d4StaLt 1275,128; 38 U.S.O, 551,
See 1tnfra1pp. 87-112.
*The Department of the Army and its Seeetary wll he referred to
hereafter, excepting in quottions, byrtheir preaept oSeial titles.
SAct of March 2,11991, 1,40 Stat. 187, 288i
See itre, pp. 88-90.







systems during the first World War, Congress enacted the Fed-
eral Control Act, enabling federal requisition of boatsbargpes
tugs, and other transportation facilities and operation of a barge
line on the Missisippi and Wawriir RiVer&p: ',
In 1920, operation df the bargeline was transferred to the
Secretary of the Army." This statute declared the policy of
Congress:M -
to promote encourage, anddevelop water trans p*ta
i- : tion, service, id-facilities in.connection with the corm-
merce oftlhe United Statesi and to foster and preserve
i; n full vigorbhoth rail and water transportation. ; ,
With the exprei& object of prmotigdt ;- eiicourtagiig, and de-
veloping inland waterwAy transportation facilities, Geogress
made it the duty of the Secretary of the Army, from whom it
was transferred in 1939 to tohe i Sertrf of Commerce:"' 6
to investigate the appropriate types of boats suitable
for different classes of such waterways; to investigate
:the subject of water terminals both for inland water-
way traffic and for through traffic by water and rail,
including the, necessary docks,,warehouses, apparatus,
equipment, and appliances in' connection theiewith,
S and also railroad spurs, and switches connecting with
such tern al, with a view to devising the types most
appropriate for different locations, and for the more ex-
peditious and economical transfer or interchange of
"* passengers or property between arriers by' wiieai nd
i ; carriers by rail; to advise with communities, cities, aid
S towns regarding the appropriate location of si6eh t6rmi
t is, and to cooperate with thbni in the preparation of
plans for suitable terminal facilities; to investigate the
existing status of water transportation upon .~ er-W
ent inland waterways of. the country, with a-view to
Sdetermining whether such waterways are being utilized
SAct of March 21, 1918, 6 40 Stat. 451, 454.
SAct of February 28, 1920, 201(a), 41 Stat. 456, 458, see 49 U. S. C.
141-142, and notes following.
I 500, 41 Stat 49, as amended, 49 i;S. iCA.,
"Id. and see 4 U. S.C. 14fnotefoUot4r .







'' to theextet f their capacity, and to whit extent they
'iii '. are meeting the4eieianddif: traffic, and whether thi
-i wiatir carriers' utilizing such: wateriays are interemaig:
ing traffic with the railroads; and to investigateany
other matter that may tend to promote ad encourage
inlaid water transioitation. : a :o r
Inx 1924, Congress created the Inland Waterways Corj6ra-
tion to carry outX the policies it hd enunciae in the 1920
legislation.*' "lis action wa s dled to b'e fr t pii
pose of:"
,:. ryipg o the operations of the Governme"trpowed
,,"fy,: .inland, canal, and coastwise waterways system to the
p;i i point where~ thsystqem cn, be transferred to.pviate
operation to ,.the, best advantage .of the Govern-
meantt *
To date, shch transfer has not been accomplished..
SThe Corporation operates "boats and terminal facilities on
the Misssisppi, Warrior, Illinois, and Missouri Rivers."8 Aso,
Congress directed that, when the improvement of any itibutary
or connecting waterway of the Mississippi River, hot it Adhfidl
the Ohio River,'Ahi hahave been conp etedor advanced to the
p6liti w*erb within two years thereafter a sufficient 'iid di
p~ndaitbi(dll fi6 safe operation of suitable barges and tow-
boats will have been substantially completed; and when the
Chief ot'Engineers shall certify thAt"f' o the Secretary of
Commerce, the latter shall cause a survey to be mide r the
purpose of ascertaining the amount of traffic, the terminal a-
cilities, and the through routes and joint tariff arrangements
wit"r tiitine g carriers, that are 6or U -wi thin such 'years
be probably available on such tributary'or 6onnedtingt water-
way. After completion Of the survey, and a finding by the
Secretary of Commerce that water transportation canf success-
Act of June 3, 1924, 43 Stat. 360, as amended, 49 U. S. C. 151 et seq.
1, 43 Stat. 360, as amended, 49 U. S. C. 151.
SUNrrTED STATES GOVMNEMENT OBGANIZATI0ON MANUAL, 1950-1951, p. 253
(198O). 4 S C
S8 3,43 Stat. 361, 49 U. S. C. 153(b).





88
fi~ly bepenatPS in be~:pubhlis tX tf~rest*ry,- Com-
Bac0,tfmrieM4e4FtweP a9 siervite:o f .the Ccrporatiton to such
tahutayr orn oneotiwsg trwy ra siqn .assuitable-facilities
areiaqailable o. f-uinn ii Hi ain *ef
OGe womWepmineW y e s olarBHd its pei, aow 4 q ue e, service
of the Corporation until: (1) eollpte~pg pvigYj le channels,
aP@Athorized by Coggress, afegMafe for reasonably dep.edale
lrregjlar trWasport tion service ; the rivers where the or-
pr tip operates- (* provision of .teinal cities .reson-
ably adequate for joint rail and water service; (3) ptljcaion
and filing of such joint tariffs with rail carriers as to ma&
avilble $6itttiIv & *ai a tef A as t siArtation upon fMir terms
to botl rail ahd 'atdi- rriers; *I' (4) pritrae ertitiMe engage
or aYd ready And tillng tio lb'engag thi 6tim6dfjarmrt service."
In providig Tr fli W*Meo ldase ofiAe facilities of the Cor-
poration after the foregoing conditions hive bedifi:atisfied,
Congress spe fimidbtratthey solid cot Mn Wld or.leas (1)
to a cartier by. mailIr anyone o6nnmectd with such carrier, or
(2)/to anyone.stregiviAg satisfactory asewwaree th thefaoili-
ties: will be, icountiWedAfcj oueaRteaiere ,aericel ubsaftiaJly
likram tt endere4,by,the Copora~ti n, or (3) ,m ti thle iens
have been Appaii4, and,the fair valup tereof ascertawi~ dby
the InterqtteComier~q ,Coapmiasiqn adrepprted to ,th
dent, and the sae l oease thereof ha been appro, by the
President.",,. ,, -, ,. .,
The,1939 ReIrgasTniiqn Pla o.. transferred e Inl? 4
Waterways Corpor"tion to the Depantent of Co -merce where
it functions under .e supervision and direction of the Secre-

; SIATwI ICs,--CegrQes has made provision respecting certain
relevant. tatistil information. The collection of gsta$tisq
on water-baore doasestic commerce and their publication in
Annual Reports of th Chief of Engipere is governed by vri-

" 3, 43Stat. 381, as amend4, 40 U., L 0 ( S (c).
".3, 48 Stat. 81, as ameded, 49 U. S,. 158).
"Reorganization Plan No. 2, 6, effective July 1, 1939, 53 Stat. 1481,
5 U. S. C. 183t note following.







ous laws enacted ainoe 1866.": Ia 1801, Congreas required 4bat,
vith r-Mpect to veselafarmvint at or derpating froa localities
whenise .nvigtion inprovereats are cardied on, there be furt
niahd a "coiprehelssve' tatemhet" af vessels passengers
freight!and toinage.'" This requirOixmet was implemented in
1922 when the Semretary of the Army was authorized to specify
*thasoope oisulehdstatement&'4? "r nof
Ithe olleationof sikchk statistics, ongrees in 1912 retuined
the Army Engineers to adopt a unifocra system of ,dassiaeiiftoon
for freight and upon rivers and idland waterways to collae
ton-mileage statistics as far as practicable. ; :;

S Improvement of Navigcble Wcate9 '
In the early decades of our national history, improvement of
wterways was tudertaken by states and private companies.
For eample construction of the.Erie Casal by the State f
New Ye~il was eoameie, in I741and completed in 1825,"
We have already noted instances where the Federa, Govern-
ment aided and eteouraged development by states and private
companies.8 Such instances included grants of public, lands
fbr specific projects and for river improvement generallyand
federal purchase of stock in canl o companies. '
But the responsibilities which have been assumed by the Fed-
eral Government for the protection and- roswntion of conmaere

ni Acts ed J e8, 1888, I4, 14 Stat 0 74; Act t: ;nne18 19W ; S 14, 32
IStt.'sl, 38. Un~ r thfe pia iesions of the Federal Reports Act -of 142
the Oonps lot engineers is the sole fede al ageBflcytv eqbset, c moiie a-d
pubslah dta on.domentia water-hamne commerce. Act ofB~B Oemtei 24, 142,
1:8, 56 -Stat. 108, 5 U. 8.C. .138--1ti see: B HB Fram Norl, ,Budget Na;
d-B 38.2 aad- HB Form No. Ib, Badget No. 49-.B 30).. A IeB filetlon
as to foreign commerce is similarly assigned to the Bqreau of the Ceass.
See Department of Commerce Form No. 7525Y Budget No, 41- 887.2;
Castoefs Form No. 701, Budget No. 48- 2171. : '
tiAet fi brlry M21U, 1891 i $1 28 Stat. 760, 3t U. S o. 554.
c Aet of September 22,1922, 11, 42 Stat. 1O88 10.438 8 U. 0. 555.
: tAct oa July 25, 1912, 1, 87 tat 201, 228, 83 U. S. 558.
SSee PuRIo Ams ro TBAN&SPOBATION, Federal Coordinator of Transpor-
tation, voL III, p. 10 (1989).
* See supra, pp. 75-76.




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