Earlier this year, the Supreme Court granted certiorari in what will undoubtedly be the year’s most important maritime opinion. In Lozman v. City of Riviera Beach, Florida, the Court will answer “[w]hether a floating structure that is indefinitely moored, receives power and other utilities from shore, and is not intended to be used in maritime transportation or commerce constitutes a ‘vessel’ under 1 U.S.C. Sec. 3, thus triggering federal maritime jurisdiction.” Petitioner Fane Lozman’s Brief has been filed, as has Amicus Briefs in support of Petitioner. This entry addresses the arguments lodged in those Briefs, which are posted on SCOTUSBlog. (NavWaters will do a follow-up article once Respondent’s Brief and supporting Amicus Briefs are posted online.)
Indefinitely moored floating structures are extensions of land, not “vessels.” A structure’s “purpose” is defined by its design and function. A vessel’s purpose is to carry people or things over water, and it is designed for such. An indefinitely moored floating structure lacks any such purpose. The “purposive approach” was not abrogated by the Supreme Court, like the lower court claimed. Just the opposite. In Stewart v. Dutra Construction Co. the Court “stressed . . . that transportation must be one of the purposes of a structure for it to qualify as a vessel.” Finally, principles of federalism will suffer if admiralty jurisdiction is extended to moored floating structures that function as extensions of land.
The ability to float does not make a structure a “vessel.” Instead, the purpose or function of the structure must be analyzed to determine “whether it is practically capable of being used for marine transportation.” This inquiry should focus on objective criteria, and not the owner’s subjective intention. Objectively, when “a floating structure’s function is to remain stationary near the shore, it is often not practically capable of being used for maritime transportation.”
In this interesting Brief, Amici “describe the design and purpose of floating homes, their structural limitations, and the nature of the communities that comprise them.” Floating homes are stationary residences that lack means of self-propulsion and are attached to land-based moorage facilities. Utilities are provided via connections with land-based utilities. The floating homes are built according to the same codes governing land-based homes, and sometimes these homes cannot be towed. The ability to be towed may be unimportant considering that many floating homes are kept in the same place for decades. Finally, pinning “vessel” status to floating homes would lead to undesirable consequences like frustrating “the existing state and local regulatory regime for floating homes . . . .”
Amici argue that “floating structures that are intentionally and indefinitely moored, that are used in the manner of structures on fast land, that are not used for transportation on the water, and that will not be so used for the foreseeable future are not vessels . . . .” There is no reason to displace adequate state law with federal admiralty law. The test for what is a “vessel” should “remain focused on functional considerations” instead of turning on whether “such structures can be, and occasionally are, towed across water.” Further, extending admiralty jurisdiction to Mr. Lozman’s floating house would prompt serious federalism concerns by infringing on matters typically reserved for state law, such as landlord-tenant relations.
Whether a floating structure is a vessel is a practical consideration that should not depend on whether the structure can be towed across water. When “practical considerations” are extended to dockside casinos, courts have largely agreed that “dockside casinos that have been moored for years are not vessels even if they theoretically might navigate over water or are registered with the Coast Guard.” The American Gaming Association’s Brief has a great write-up collecting the eleven federal and state court rulings since Stewart v. Dutra Construction Co. that review whether dockside casinos are vessels under federal maritime law.