The Lakes and the Law of the Sea (Or, The Wreck of the Genesee Chief)

Great Lakes Map
Map from 1862 Showing Commercial Routes through the Great Lakes Region. Image Source: Library of Congress

The shores of the Great Lakes may look serene, but they are a battleground.

Judge Melissa May, Indiana Court of Appeals

The Edmund Fitzgerald may be the most famous ship to have sailed on the Great Lakes, but it was not the most important. That distinction (probably) goes to a ship you (probably) haven’t heard of: the Genesee Chief, a “propeller” that was first launched in June of 1846. (A “propeller” is a steam-powered propeller ship. This term was used to contrast this new type of boat with the steam-powered paddle wheel boats which were also popular at the time).

Contrary to what the title may suggest, the Genesee Chief did not sink, though it seems to have been the most unlucky ship in maritime history. The woes of the Genesee Chief aside, it is an important ship because an incident in 1847 with a schooner called the Cuba led to one of the most important Supreme Court court cases in Great Lakes history and the history of water governance in the United States. In the words of one legal scholar, this case:

“…has probably been cited and commented upon both favorably and unfavorably by the court itself more than any decision it ever rendered.”

The Incident

In the summer of 1846, the Genesee Chief, “one of the most splendid propellers on the lakes” was launched from Buffalo, New York. Over 4,000 people sent the 150 foot-long, steam-powered ship with fanfare into the blue canvas of Lake Ontario. The ship could carry nearly 200 people from one end of the Great Lakes to the other, and was made with the most ground-breaking technology of the time. Newspapermen described the ship as “noble” and “faultless,” and it was seen as a jewel of the Great Lakes. It was designed to carry passengers and freight from New York to Chicago, using the recently-completed Welland Canal to bypass the iconic waterfalls along the Niagara River. However, this ship with so much promise soon proved to be a large liability.

In 1847, in one of its first voyages, it caught fire 5 times on the way to Chicago from Rochester – nearly once per lake it sailed through. That same year, on its second voyage, it was running “up the lake” from New York to Illinois and was about 40 miles from the mouth of the Niagara River on the night of May 6, when its 429+ tons hit the stern of the schooner Cuba and sank it. The Cuba was en route from Sandusky, Ohio to Oswego, New York, and was inching along the final stretch of a voyage spanning Lake Erie, the Welland Canal, and Lake Ontario. The Cuba quickly began to sink and was soon lost beneath the waves, along with a cargo of wheat valued at about $150,000 in today’s dollars. The crew, however, were rescued aboard the Chief.

It took two days for the news to reach Oswego, and upon learning of the mishap, the owners of the Cuba immediately sought damages from the owners of the Genesee Chief. Both parties were then mired in a series of court case that would span four years and some of the most important events in American history.

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Some legal background…

The U.S. legal system is largely based on English Common Law, which, predictably, comes from England. The way the American legal system works–from jurisprudence to legal definitions–is heavily drawn from the ages-old English legal system. An example that suits the purposes of this post is the application of maritime law. English Common Law dictates that bodies of water where tides “ebb and flow” should be governed under “maritime law,” allowing for a standard network of laws between major rivers and the seas. This was the definition that the United States used during the first several decades of its existence, described by the Supreme Court Justice Stephen Field here:

“The [English] common-law test of the navigability of waters [is] that they are subject to the ebb and flow of the tide”

Justice Field, 107 U.S. 678 (1883)

A quick aside for definitions, because there are several terms that basically mean the same thing: “maritime law” is more or less the same thing as “admiralty law” and  “the law of the sea.” The law of the sea is the set of laws that deal with legal matters on the world’s oceans and seas.  It’s kind of like when you would play basketball with your friends back when you were a kid–if you were at your house, your rules; at their house, their rules. But when you were at the park–the law of the street! Along the coasts, each nation has certain waters that are under its own jurisdiction where it can create its own miniature law of the sea/maritime law/admiralty law.

So, instead of the (boring) terms”maritime law” or “admiralty law,” I am going to use the more awesome-sounding term “the law of the sea” in this post (in bold and everything just to show that I am using it that way).

Anyway, the way that English Common Law defines the waters that fall under the law of the sea (i.e., where the tides “ebb and flow”) worked fine for England because it is a small country on an island, and pretty much all the navigable waters there are subject to tidal flows.

But guess what? The entire U.K. (not just England) could fit inside the Great Lakes. Because ‘murica.

The entire U.K. could fit inside the Great Lakes. Image Credit: Business Insider.

The Great Lakes are not really affected by tides (they kinda are). But, they are humongous inland seas that border more states than the Pacific Ocean and a foreign nation (Canada) that, at the time of Genesee Chief court case, was ruled by the only nation with which the United States had fought three wars (bitter much, U.K.?). Before the Genesee Chief plowed along, more or less the same law that governed those little drainage ponds you see next to strip malls (or the 18th-century English equivalent) governed the largest freshwater system in the world (and the current third-largest economy in the world). So much disrespect!

History in the Foreground

Although the Genesee Chief collided with the Cuba in 1847, the case was not decided by the Supreme Court until 1851. A lot was changing in the U.S. between 1847 and 1851:

  • In 1848, the Mexican Cession granted the United States sovereignty over all lands west of Texas to the Pacific Ocean.
  • Wisconsin became a state (1848) and Minnesota became a territory (1849), cementing U.S. claims to the entire Great Lakes shoreline south of the 49th parallel.
  • Also in 1848, the Oregon Territory was organized after the Oregon Treaty (1846) resolved the disputed claims between the U.S. and U.K. over the exact boundary between the U.S. and Canada (Canada was still under the Crown at that time).
  • Also in 1848, the Illinois and Michigan Canal was completed, linking the Great Lakes to the Mississippi-Missouri River System. This effectively created a navigable waterway over 3,500 miles long from the Atlantic Ocean to the western reaches of the Missouri River and the Gulf of Mexico.
  • California became a state in 1850 amid the hysteria of the ’49 Gold Rush.
  • The Compromise of 1850–addressing slavery-related issues–formed the Utah Territory and the New Mexico Territory.
  • Also in 1850, the Canadians/British ceded an acre of submarine land where the Niagara River meets Lake Erie to the United States to build a lighthouse on Horseshoe Reef.

In short, the territory over which the United States had jurisdiction had exploded in the previous few years. These territorial changes in the United States included complicated international transactions, and enveloped most of the great rivers of North America–the Columbia, the Missouri, the Colorado, and the Mississippi–as well as the Great Lakes themselves. The exact jurisdiction the United States had on (international) navigable waters was becoming more and more important to delineate.

Propeller Genesee Chief  v Fitzhugh (1851)

The reason a seemingly insignificant case made it all the way to the Supreme Court was that the owner of the Cuba (the “Fitzhugh” of the case’s title) decided to take it to a federal district court, per a controversial law newly minted by Congress in 1845.* It hopped up three levels of federal government before it got to the Supreme Court, and they all agreed that a) the situation at hand was subject to the law of the sea and b) the Genesee Chief was at fault. The owners of the Genesee Chief were ordered to pay damages of $16,000 dollars (about $500k in today’s dollars). But aside from the particulars of the case, the supreme court handed down some important ancillary decisions.

Chief Justice Taney wrote the majority decision in this case. Born in 1777, he had lived through the War of 1812, a war which had provoked him to change political parties and run for state senate in Maryland. The War of 1812 was fought on many fronts, not least of which was Lake Erie, on which there were over 250 casualties in just one battle. This, along with the so-called Great Lakes Act of 1845, probably informed what he had to say about the Great Lakes in his decision:

These lakes are in truth inland seas. Different states border on them on one side, and a foreign nation on the other. A great and growing commerce is carried on upon them between different states and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them and prizes been made, and every reason which existed for the grant of [the law of the sea] to the general government on the Atlantic seas applies with equal force to the lakes.

In short, these are interstate/international waters with important strategic and economic interests to the Union. These should fall under the law of the sea.

This makes some sense, though it was controversial. But then Justice Taney did something a little crazy for the time.

The union is formed upon the basis of equal rights among all the states. [The law of the sea has] been found necessary in all commercial countries, not only for the safety and convenience of commerce…but also to administer the laws of nations in a season of war and to determine the validity of captures… And it would be contrary to the first principles on which the Union was formed to confine these rights to the states bordering on the Atlantic and to the tidewater rivers connected with it, and to deny them to the citizens who border on the lakes and the great navigable streams which flow through the western states…

Basically, the court said it wouldn’t be fair to the non-Atlantic states unless the law of the sea (i.e., federal maritime law) applied to the Great Lakes and to the “great navigable streams” throughout the United States. Seems to me somebody drank the federal government kool-aid.

Related Decisions

This decision, though limited in scope, was nonetheless monumental, even if it was not the first time that the federal government was said to have jurisdiction over interstate streams: the legal waters had already been muddied by a few cases that had allowed the federal government to rule on navigable streams, whether because it was in the regulation of interstate commerce (Gibbons v. Ogden, 1824), or because the rivers were still (even if barely) affected by tides (Waring v. Clark, 1847).

However, the whole notion of federal government ruling over bodies of water beyond the ebb and flow of tide was in direct opposition to common law and a Supreme Court decision in 1829 called The Thomas Jefferson (after a boat with that name on the Missouri River) where Chief Justice John Marshall said that the rivers in the U.S. are emphatically not subject to the law of the sea:

…[the law of the sea] never pretended to claim nor could it rightfully exercise any jurisdiction except in cases where the service was substantially performed…upon waters within the ebb and flow of the tide….In the present case, the voyage…was several hundreds of miles above the ebb and flow of the tide, and in no just sense can…be considered [under the law of the sea].

That is what made the Genesee Chief decision so shocking – it refuted a pretty black-and-white definition from The Thomas Jefferson decision (and from English common-law, on which the Constitution had been framed) that the law of the sea didn’t apply to waters without the ebb and flow of tide. Then, it went further than the Gibbons decision and the Great Lakes Act of 1845 in applying the law of the sea to the Great Lakes and applied them to large rivers too. It once and for all discarded the tidal limitations of English Common Law, which the Chief Justice argued was out of date given the massive changes in the United States in the decade(s) prior. In the view of the Genesee Chief decision, the tidal limitation of the law of the sea was misapplied in a massive country with massive rivers and massive ships. Or, as Justice Field put it in a later case involving Lake Michigan:

In England there are no waters navigable…which are not also affected by the tide. That test has long since been discarded in this country. Vessels larger than any which existed in England when that test was established, now navigate rivers and inland lakes for more than a thousand miles beyond the reach of any tide.

Or, as I imagine in the voice of Arnold Schwarzenegger: “puny little England’s rules for puny little rivers and puny little boats can’t handle our colossal continent.”

Implications – wait, why is this important?

The history of the jurisdiction of the law of the sea, public trust doctrine, the waters of the U.S., and the status of the Great Lakes as “inland seas” are all tied up in this case of a tragically unlucky steam vessel striking an even more unlucky sailboat in a far corner of the Great Lakes. It is a historical fact with profound effects on the present, even being cited in an Indiana Supreme Court case as recently as last month that maintained the State of Indiana’s jurisdiction up to the ordinary high water mark.

One thing you learn quickly as a geologist is that the events of dozens, scores, hundreds, thousands, and even millions of years ago have an astoundingly profound effect on the livelihoods and development of people, cities, and nations today.  It should not surprise us that a court case over 150 years ago–and the Constitution before it, and England’s laws before it–still define where and how we study, regulate, and enjoy the natural resources of lakes and rivers. Humans may be fragile in the face of geologic time (a fact which I will explore in next week’s post), but it seems we are able to create things that stand the test of at least a couple lifetimes. And that should give us hope.

That, and the fact that we are still legally bound by something as awesome-sounding as the law of the sea.

*Because the owners of both the Cuba and the Genessee Chief were from New York State, there was a question about whether a federal court should even hear the case. However, a recently passed law 5 Stat. 726 stated the law of the sea presided over commerce on the Great lakes as long as the ships involved were large (over 20 tons capacity) and they were traveling between different states. Well, this seemed to fit the bill, as both ships involved could carry over 50 tons, and the Cuba was carrying cargo from Ohio to New York. Easy decision about jurisdiction, if you ask me. The three levels of federal courts that heard the case seemed to think so, too.


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