SCOTUS Refuses to Clarify its “Vessel Status” Holding in Stewart v. Dutra Construction Co.

On October 4, 2010, the Supreme Court of the United States denied certiorari and refused to review the New York Court of Appeals’ decision in Lee v. Astoria Generating Co., 13 N.Y.3d 382 (N.Y. 2009).  In Lee, New York’s highest court relied upon the Supreme Court’s holding in Stewart v. Dutra Construction Co. to find that a barge containing an electricity-generating turbine which was moved once a decade for maintenance, qualified as a “vessel in navigation” because the barge was capable of being used as transportation on water.

Being aggrieved by New York’s decision, the plaintiff petitioned the Supreme Court for certiorari, questioning whether the New York court misapplied Stewart when it held that the floating power plant was a “vessel in navigation,” and whether the New York court erred when it dismissed the plaintiff’s state law claims as being preempted under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act. 

The plaintiff-petitioner argued that the floating turbine facility should not be considered a vessel because it was permanently moored and had no maritime transportation purpose other than a remote possibility that it may one day sail.  Further, it had been moored to the shore in a permanent manner for forty-one years, with maintenance reportedly provided once every ten years. 

Responsive filings were submitted by Astoria Generating Company and Orion Power (collectively, “Astoria”).  Astoria argued that the barge should be considered a vessel because it could be used as a means of transporting their power turbines over water, and that it had actually been used for that purpose before.  Astoria argued the focus should be on “a watercraft’s potential, rather than its actual use…” 

The Marine Law Association of the United States (“MLA”) filed an  Amicus brief that supported the Petition for Certiorari for a limited issue.  It requested the Court to resolve a purported conflict in the Federal Circuits regarding “vessel status.”  Specifically, the Court was urged to resolve the Circuit split “on the issue of whether or not the intent of the owner of the structure is relevant to the determination of vessel status.” 

The MLA argued that the New York court’s Lee decision is similar to the Eleventh Circuit’s decision in Bd. of Comm’rs of the Orleans Levee Dist. v. M/V Belle of Orleans, 525 F.3d 1299 (11th Cir. 2008), which held that a floating casino was a vessel.  The Eleventh Circuit refused to consider the casino owner’s intent.  Nonetheless, the MLA noted, the New York court and the Eleventh Circuit’s decisions conflict with decisions from the Fifth and Seventh Circuit that did consider a casino owner’s intent when determining vessel status.  See De La Rosa v. St. Charles Gaming Co., Inc., 474 F.3d 185, 187 (5th Cir. 2006); Tagliere v. Harrah’s Illinois Corp., 445 F.3d 1012 (7th Cir. 2006).

The Court should have granted certiorari to discuss the vessel status issue and whether an owner’s intent is a factor that must be given any weight.  The purpose of Stewart v. Dutra was to “resolve confusion over how to determine whether a watercraft is a ‘vessel’ for purposes of the LHWCA.”  Stewart, 543 U.S. at 486.  In review, however, Stewart has caused additional litigation about vessel status.  That is the problem with applying broad strokes to legal issues that could be resolved summarily if additional guidance existed.  Here, the broad stroke is the applicable definition of “vessel,” which “includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”  1 U.S.C. § 3 (2010).  As one court stated, this could include “three men in a tub” or “Jonah inside the whale.”  Burks v. Am. River Transp. Co., 679 F.2d 69, 75 (5th Cir. 1982). 

Further, the owner intent issue is likewise important, and confusion exists in Stewart as to whether owner intent is a consideration.  To be sure, the Court did state that a watercraft’s primary purpose is not important so long as the watercraft has a practical possibility, as opposed to a theoretical possibility, of being used “as a means of transportation over water.”  Stewart, 543 U.S. at 496.  Nonetheless, the Court also made statements that indicate the importance of an owner’s intent.  For instance, a structure may lose its character as a vessel if it has been withdrawn from the water for extended periods of time.  Id.  Further, the Court found other actions, such as running utility lines from a structure to the shore as evidencing that a watercraft was rendered practically incapable of transportation or movement, and not a vessel.  Stewart, 543 U.S. at 493-94.  Based upon these statements, it would seem that an owner’s intent is important to the determination of vessel status when that intent has manifested itself to the point that the owner made the vessel practically incapable of transportation or movement.  In other words, intent is important when the idea has manifested into an intentional act.

In Lee v. Astoria Generating Co., the Supreme Court had the opportunity to further clarify its decision in Stewart v. Dutra Construction Co., and it missed the boat by refusing to grant certiorari to further clarify the elements necessary to determine a watercraft’s status as a “vessel.”

Bill Emory
Bill Emory, a Member at Mouledoux, Bland, Legrand & Brackett, represents clients throughout the United States and abroad, and has served as trial counsel in state and federal litigation in Alabama, Florida, Louisiana, Missouri, Mississippi, New York, Texas and Virginia. His defense practice includes all areas of admiralty and maritime law as well as insurance, transporation and general casualty matters. Bill can be contacted at (504) 595-3000 or by e-mail at bemory@mblb.com.
Bill Emory