memorandum on lozman...a split in the circuits has emerged, prompting the court to grant certiorari...
TRANSCRIPT
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MEMORANDUM
TO: Cindy Squires
Chief Counsel for Public Affairs, Director of Regulatory Affairs
National Marine Manufacturers Association
FROM: Tommy Tobin
Legal Intern
National Marine Manufacturers Association
DATE: August 6, 2012
RE: Fane Lozman v. The City of Riviera Beach:
Recreational Boating Industry Ramifications
Question Presented
You asked me to review the filings in the case Lozman v. Riviera Beach that has
recently been granted certiorari by the Supreme Court to determine its potential impact on the
recreational boating industry and to provide a summary of the case and my findings. Here, the
petitioner Mr. Lozman docked a floating residential structure at the city’s marina, which placed a
maritime lien against the structure for unpaid debt. Mr. Lozman contends that this maritime lien
was inappropriate as his structure was not a “vessel” under the term’s statutory definition in 1
U.S.C. § 3. He contends that his structure was indefinitely moored, received power and other
utilities from land, and was not intended to be used for maritime commerce or transportation.
Could the determination of this structure’s “vessel” status substantially affect the recreational
boating industry?
Brief Answer
Yes. First, statutory determinations that are based entirely on a structure owner’s
subjective intent would be untenable, resulting in vacillating determinations of a structure’s
“vessel” status. If this were the case, structures could float in and out of “vessel” status based on
the whims of the craft’s owner and avoid relevant statutory and regulatory requirements. Second,
changing a watercraft’s “vessel” status could create confusion for marine businesses and
regulators. For example, maritime liens rely on a structure’s “vessel” status. Therefore, maritime
liens entered against a craft that has lost its “vessel” status could be adversely affected or
rendered invalid in certain circumstances. The Court is slated to hear oral arguments on October
1, 2012 and a decision will be issued by June 2013.
Discussion
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The statute at issue, 1 U.S.C. § 3, defines “vessel” as including “every description of
watercraft or other artificial contrivance used, or capable of being used, as a means of
transportation on water.” A shift in this statute’s interpretation would alter the way this default
definition is applied throughout the U.S. Code as the definition applies to numerous federal
statutes, such as the Jones Act.1 While Mr. Lozman’s structure was certainly artificial in nature,
the question remains whether it was used or was capable of being used for marine transport.
Here, Mr. Lozman’s craft was used as a residence and was attached to land-based
utilities. The structure had no propulsion of its own, had no Hull Identification Number, and had
been towed several times. In his appeal before the Eleventh Circuit, Mr. Lozman’s structure was
classified as a “vessel” as it was able to be moved over water, even to its supposed detriment.
In the Court’s most recent case addressing the statutory definition of a “vessel,” a large
dredger in Boston Harbor with limited means of self-propulsion was found to be a “vessel” as its
function was to move through the Harbor to dig the trench and was therefore “used to transport”
equipment and laborers over water.2 The Stewart Court drew a distinction between watercraft
temporarily stationed in a position and those permanently affixed to shore or the seafloor.3 The
Court ruled that structures “permanently moored, taken out of service, or otherwise rendered
practically incapable of maritime transport” are not vessels.4
A Split in the Circuits Has Emerged, Prompting the Court to Grant Certiorari
Since Stewart, the circuit courts have split in their interpretation of 1 U.S.C. § 3. The
Fifth Circuit has incorporated the purpose and function of a structure in determining its use or
capability of use for marine transportation.5 Judge Posner in the Seventh Circuit delivered a fine-
grained analysis that hinged on whether a structure had been “permanently” or “indefinitely”
moored.6 Judge Posner’s opinion hypothesized a place for the owner’s intended use of the
structured, writing that perhaps “a boat also is ‘permanently’ moored when its owner intends that
the boat will never again sail, while if he has not yet decided its ultimate destiny it is only
‘indefinitely’ moored.”7
1 See Brief for the United States as Amicus Curiae Supporting Petitioner at 11.
2 Stewart v. Dutra Constr. Co., 543 U.S. 481, 495. (2005)
3 Id, at 493.
4 Id, at 496.
5 De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th Cir. 2006) (ruling that a dockside casino was not a
vessel as its operations were entirely gaming related and “not maritime in nature”). 6 Tagliere v. Harrah’s Ill. Corp., 445 F.3d 1012, 1016 (7th Cir. 2006).
7 Id.
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While the Fifth and Seventh Circuits incorporated the purpose for which the structure
was built and the function of the craft as factors in the determination of “vessel” status, the
Eleventh Circuit has articulated a standard that eschews such an analysis and focuses instead on
a structure’s ability to move over water as dispositive.8 The Belle of Orleans concerned a
riverboat casino was moored to shore with steel chords and was connected to land-based data,
phone, and electrical lines. This craft was ruled a “vessel” as it could be moved over water
whether by self-propulsion or by tow, even to its detriment.9
Here, the parties and amici are divided on the standard to be used when determining
whether a structure is a “vessel.” Mr. Lozman suggests that the standard should be the practical
capacity of a structure to move people or things over water, focusing on the vessel’s purpose as
judged by the function and design of the craft. The United States, as amicus curiae, proposes a
similar standard emphasizing a vessel’s purpose as identified by objective criteria, such as that of
a recent Coast Guard regulation that presented five objective questions to determine whether a
structure was a “vessel” or a “Craft Routinely Operated Dockside.”10
This regulation can be
found in Appendix A. The city of Riviera Beach supports the bright-line Eleventh Circuit
standard, considering the ability to be towed as dispositive of a structure’s practical capacity to
move over water carrying people or cargo. The positions of the parties and amici curiae are
summarized below in Appendix B, and selected cases are included within Appendix C for
reference.
Potential Impact on Recreational Boating Industry
Regardless of the standard chosen, the case holds considerable potential ramifications
for the recreational boating industry regarding the criteria used in “vessel” status determinations
and problems with resulting statutory uncertainty.
Briefs for the United States, the Maritime Law Association, and a group of Thirty-Six
Maritime Law Professors, among others, describe the potential issues if an owner’s subjective
intent is used to ascertain “vessel” status.11
Structures could escape relevant statutory and
regulatory requirements by floating in and out of “vessel” status based on their subjective,
unverifiable, and non-binding intent about the use for the structure. For example, these
professors claim that unprincipled vessel owners could manipulate their craft’s status to frustrate
the process of maritime lenders.12
Instead of focusing on highly malleable, subjective intent,
several briefs suggest that the Court examine objective factors that are less likely to change
rapidly.13
A focus on objective criteria could avoid structures floating in and out of “vessel”
8 Bd. of Comm’rs of the Orleans Levee Dist. v. M/V Belle of Orleans, 535 F.3d 1299, 1312 (11th Cir. 2008).
9 Id.
10 Craft Routinely Operated Dockside, 74 Fed. Reg. 21,814, 21,815 (May 11, 2009) (Notice of policy).
11 See e.g., Brief for Thirty-Six Maritime Law Professors as Amici Curiae Supporting Respondent at 15-24.
12 Id, at 22.
13 E.g., Brief for the United States as Amici Curiae Supporting Petitioner at 26.
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status based on the whims of the craft’s owner and would decrease the likelihood that such status
determinations could frustrate the expectations of maritime businesses and regulators.
National Marine Bankers Association Warns of Potential Uncertainty in Maritime Lending
Confusion about the legal classification of a marine structure could “cripple” the
recreational boating industry, according to the National Marine Banking Association
(“NMBA”).14
The Association warns that uncertainty about the legal status of the property and
available remedies for enforcement could hinder marine lenders ability to recover debts and
discourage potential marine lending.15
The Association is considerably concerned about the
possibility that craft owners could sign marine loan documents as a “vessel” then successfully
avoid the debt by changing its vessel status. They predict that consumers would face increased
interest rates to offset lender uncertainty and risk, at a minimum. At worst, marine lenders could
depart the industry, potentially decreasing the number of marine funding opportunities overall.16
Federal maritime jurisdiction, requirements, and its unique procedures are based on the
particular circumstances of maritime commerce and transportation. Whether the Court adopts the
standards of the Fifth or Eleventh Circuits, the maritime lending sector and other sectors of the
recreational boating industry could be substantially affected if an owner’s subjective intent is
incorporated into the “vessel” status determination, especially if it considered the dispositive
factor.
Conclusion
If the Court adopts a “vessel” status standard that is based on an owner’s subjective
intent, the recreational boating industry could be considerably affected. The Court will hear oral
arguments on October 1, 2012 and issue a decision by June 2013.
14
Brief for NMBA as Amicus Curiae Supporting Respondent at 4. 15
Id. 16
Id, at 9.
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Appendix A
“Craft Routinely Operated Dockside” Non-Exclusive List of Factors
Is the craft surrounded by a cofferdam, land or other structure, such that although
floating, it is in a “moat” with no practical access to navigable water?
Is the craft affixed to the shore by steel cables, I-beams or pilings, or coupled with land
based utility connections for power, water, sewage and fuel?
If the craft were operated in navigation, would it be thereby endangered because of its
construction?
What is the purpose, function, or mission of the craft?
Can the craft get underway in less than eight (8) hours? If more than eight hours are
required, the [Coast Guard Officer in Charge, Marine Inspection] will determine if the
delay was attributable to factors outside the owner's or operator's control, in which case
the delay may be overlooked.
Craft Routinely Operated Dockside, 74 Fed. Reg. 21,814, 21,815 (May 11, 2009) (Notice of
policy).
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Appendix B
Summary of Arguments
Arguments for Petitioner Lozman
Mr. Lozman’s arguments before the Court center on the incorporation of a structure’s
purpose and practical capacity to transport people or cargo over water into the test for “vessel”
status. To bolster his assertion, he cites Court precedent in support as well as the allegedly
deleterious effects on maritime law and federalism of the expansion of the Eleventh Circuit’s
standard.
First, Mr. Lozman examines a structure’s purpose, finding that crafts that function as
extensions of land should not be classified as “vessels.” According to Mr. Lozman, marine
transportation within 1 U.S.C. § 3 draws a distinction between moving people and things to
various points and being moved. Far more items can float and be moved in marine environments
than can move across the water on their own. According to Mr. Lozman, “vessel” should include
only those structures that possess the practical capacity to be used as a means of transport over
water. If the purpose of a craft is the ability to move people or things across the water, then it is
rightly classified as a “vessel.” Instead of relying on an owner’s subjective intent, Mr. Lozman
bases this test of purpose on a structure’s design and function. Brief for Petitioner at 21-24.
Second, Mr. Lozman reads Court precedent excluding a floating drydock, wharfboat,
and decommissioned Liberty ship from “vessel” status as supporting a test for “vessel” status
that includes a structure’s purpose and practical capacity for marine movement. For example, the
fact that a wharfboat had been towed hundreds of miles was not dispositive in the Court’s
determination. See Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S.
19, 20 (1926). Mr. Lozman asserts that the Eleventh Circuit erred in its analysis of Stewart.
Instead of standing for the abandonment of the inquiry into a structure’s purpose, Mr. Lozman
claims Stewart incorporated the dredge’s function as necessitating movement at various points in
the harbor and incidentally carrying workers on board. According to Mr. Lozman, the Eleventh
Circuit’s “capability of tow” test fails to acknowledge the unanimous Stewart Court’s
endorsement of this precedent. Brief for Petitioner at 26-30, 34.
Third, Mr. Lozman is concerned that applying “vessel” status to indefinitely moored
structures would upset current maritime law, such as the Jones Act, the Maritime Lien Act, and
the Limitation of Liability Act. According to his filing, applying these statutes to floating
structures that are not “vessels” run against the purpose of the statutes themselves. As an
example, maritime liens are noted as a unique federal remedy to attach debts to a craft itself
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without notifying the owner as to avoid the ship moving away to escape the debt. For a craft that
is permanently moored, there would be no reason to believe that it could vacate quickly to avoid
repaying the debt. See The Rock Island Bridge, 73 U.S. 213, 216 (1867) (A “maritime lien can
only exist upon movable things engaged in navigation, or upon things which are the subjects of
commerce on the high seas or navigable waters”). Mr. Lozman claims that, given the different
risks, function, and uses of these crafts, indefinitely moored structures should also be exempted
from these requirements because they lack the practical capacity to move over water. If these
structures are extensions of land, the land-based rules should apply and solutions tailored to the
maritime environment are ill-applied. Brief for Petitioner at 35-37.
Finally, Mr. Lozman claims that applying federal maritime jurisdiction to indefinitely
moored structures would raise issues of federalism. Whereas “vessels” are automatically subject
to federal maritime jurisdiction and requirements, structures that are not connected to maritime
transportation or commerce may or may not implicate federal law. Taking issues out of states’
purview, according to Mr. Lozman, could unnecessarily burden federal courts, usurp traditional
areas of state legislative and regulatory domains, and place inappropriate strictures on litigants
costing them both money and time. Brief for Petitioner at 44-46.
In sum, Mr. Lozman advocates for a “vessel” determination standard of practical
capacity for a structure to engage in maritime transportation. As such, a structure should be able
to move over water and carry people or items, rather than simply be able to be towed while doing
so. If the Court were to adopt this standard, it would be charged with divining the purpose of a
structure from its design and function, incorporating this evaluation into a test of practical
capacity for marine transportation.
Amici for the Petitioner
Four amici wrote in support of Mr. Lozman’s position that indefinitely moored
structures are not “vessels” under 1 U.S.C. § 3 given their function, purpose, or design. Amici
include: the United States, the Floating Home Associations of Seattle and Sausalito, the
American Gaming Association, and a group of three maritime law professors. Each amicus
hopes to classify “vessels” in such a way that reflects the structure, operation, and traditions of
maritime law. Each is concerned about the application of federal maritime requirements
inappropriate for non-vessel structures.
Petitioner Amicus 1: The United States
The United States supports an “Objective Purpose” test, especially as it is concerned
that the outcome in this case could affect the activities of numerous federal agencies, namely the
Coast Guard, Department of Labor, and the Maritime Administration. It argues that the ability to
be towed is insufficient to establish “vessel” status. Instead, it contends that the status
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determination should be made using objective criteria that includes the craft’s purpose, design, or
function.
According to the United States, other questions of maritime law depend on a
structure’s purpose, design, or function, making it not unusual for courts to have to ascertain
such qualities in making a “vessel” status determination. For example, questions of whether
injured workers could recover under the Jones Act often hinge on whether the employee was
contributing to the “vessel’s function or mission.” Brief for United States as Amicus Curiae
Supporting Petitioner at 22-23.
The United States notes that using objective criteria gleaned from a structure’s
attributes and circumstances would avoid the dangers of relying on an owner’s whims or
subjective intent in determining “vessel” status. Such intent could be subject to rapid change. If
owner’s could subjectively alter a structure’s status, enabling it to drift in and out of “vessel”
status, the risks of manipulation in litigation would soar as would regulatory complications for
relevant agencies. Id, at 26.
For stationary structures operated near the shore, an analysis of their functions would
likely be highly relevant to its practical capability for marine transport, according to the United
States. Its brief describes that the Coast Guard developed regulations exempting certain classes
of structures from its regulations pertaining to “vessels.” 74 Fed. Reg. 21,814 (May 11, 2009).
These regulations excluded “Craft Routinely Operating Dockside” from the categorization of
“vessels” under 1 U.S.C. § 3 and articulated a set of factors that the agency would use to
determine whether such a structure had the practical capacity to operate in maritime
transportation. These factors are included in Appendix C. The United States claims these factors
present objective criteria that the United States claims were responsive to the Court’s ruling in
Stewart and incorporated its purposive line of inquiry. Brief for United States as Amicus Curiae
Supporting Petitioner at 28.
As Lozman’s appeal was decided prior to discovery, several of the facts to be used if
the Court were adopt an objective standard that includes the structure’s purpose or function are
yet undetermined and remain in dispute. Therefore, the United States suggests that a remand for
further fact-finding would be appropriate once the standard is determined. Id, at 29-31.
Petitioner Amicus 2: Seattle and Sausalito Floating Home Associations (“FHA”)
The Floating Home Associations of Seattle and Sausalito represent approximately 750
floating residences that are concerned that the Eleventh Circuit’s standard would classify their
structures as “vessels.” These groups claim that the only substantial difference between floating
homes and homes on land is the foundation on which they sit. Brief for Seattle FHA and FHA of
Sausalito as Amicus Curiae Supporting Petitioner at 4.
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The Associations contend that state laws differentiate floating homes from “vessel”
watercraft. According to the Associations’ materials, at least three states have laws that
specifically define floating homes and exclude them from state definitions of “vessels.” Id, at 5.
Further, they claim that floating homes are distinct from houseboats: whereas houseboats have
self-propulsion, floating homes have no motor. Id, at 5-6. According to the Associations, floating
homes are stationary entities, they lack self-propulsion, and are connected to shore for utilities.
They claim that floating homes are rarely moved, and such movement is slow, rare, and risky for
the structure itself.
Petitioner Amicus 3: American Gaming Association (“AGA”)
The AGA advocates for a practical standard for “vessel” status determination,
incorporating a structure’s prior use, current circumstance, and its reasonably likely future use.
Dockside casinos operate on the water and may be included in the status of “vessel” were the
Court to uphold the Eleventh Circuit standard, triggering federal maritime jurisdiction and
requirements. In its review of eleven post-Stewart decisions regarding dockside casinos, the
Association found that nine cases, or roughly eighty-two percent (82%), regarded these floating
structures as non-vessels. Brief for the AGA as Amicus Curiae Supporting Petitioner at 8.
Reviewing each of the eleven cases, the AGA claims that the Eleventh Circuit’s capability of tow
was idiosyncratic and was not adopted in any other jurisdiction. Id. The Association is further
concerned that the application of federal maritime law to dockside casinos could interfere with
state gaming laws and regulations. Id, at 15-16.
Petitioner Amici 4: Three Maritime Law Professors
The three professors recognize that maritime law is a unique body of law that was
constructed to respond to the unique circumstances of maritime commerce, employment, and
transportation. Brief for Three Maritime Law Professors as Amici Curiae Supporting Petitioner
at 7-9. As such, these professors articulate a set of three considerations for the Court in making a
“vessel” status determination that reflect the general principles of maritime law codified in 1
U.S.C.§ 3. These professors’ considerations include: (1) functional reasons to apply maritime
law to this structure, (2) the adequacy of state law in addressing the subject, and (3) the intended
and unintended consequences of applying maritime law to the subject. Id, at 10.
The three professors warn that the extension of federal maritime jurisdiction to
indefinitely moored structures could sweep subjects adequately covered by state law into federal
purview. Id, at 14-16. As an example, the professors categorize Mr. Lozman’s dispute as falling
within landlord-tenant requirements that are adequately covered by state law and would not
implicate federal interests.
Arguments for Respondent Riviera Beach
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The city of Riviera Beach’s arguments advance the bright-line Eleventh Circuit
standard of “vessel” status determination, centering on the capacity of a structure to move or be
moved over water while carrying people or things. The city advances two primary lines of
reasoning to support its argument, including (1) the purported plain meaning of 1 U.S.C. § 3 and
(2) the clarity and simplicity of adopting the bright-line rule.
First, the city contends that the statute’s use of “capable” means that “vessel” status is
a broader concept than simply looking at intended purpose. Brief for Respondent at 19-20.
According to the city, the capability of an object is distinct and more general than its intended
purpose, meaning that something could be put to use for many tasks that they were not intended
to do. Comparing the situation to a carving knife used to inflict bodily harm, a structure not
purposively intended to carry people or items over water could conduct this activity. In the city’s
reasoning, it is not that such an act would actually occur but instead that the structure was
“capable” of doing so. Id, at 22.
The city reads Stewart as supporting an approach that differentiates capacity from
purpose. While the Stewart drudge’s purpose was to dig in the harbor, it was also used to carry
workers across the water. According to the city, this actual use evinces such a structure’s
capability for marine transportation. Id, at 24.
Second, the city emphasizes the simplicity of the proposed bright-line rule, especially
for jurisdictional disputes. The city stresses that the case is a jurisdictional question and that the
Court has an interest in making jurisdictional rules simple and easily applied to similar questions.
Compared with the petitioner’s purposive inquiry or the United States’ “objective purpose” test,
the city claims its proposed bright-line rule is easier to apply and is simple to understand. Under
this standard, most structures that could float, could carry persons or cargo, and have the capacity
to move or be towed across the water would merit classification as “vessels.” That said, if such
structures had physical impediments rendering this movement or transportation practically
incapable, they would be excluded from “vessel” status. Id, at 30. This bright-line rule, according
to the city, would have an additional benefit of avoiding any reliance on the subjective intent of
the structure’s owner.
As the case before the court asks whether the Court should apply maritime jurisdiction
to a structure, the city suggests that most policy arguments are better left for a later admiralty
court to decide which doctrine to apply. Id, at 44. The city further submits that the strong federal
interest in promoting uniformity for those who use navigable waters would trump local interests,
subverting any federalism concerns. Id, at 47.
Alternatively, the city claims that even if the court were not to adopt its proposed
standard, objective criteria would resolve the immediate jurisdictional question at hand in its
favor. According to the city, the facts suggest Mr. Lozman’s structure was a houseboat rather
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than a floating home, and was therefore a vessel with a marine transportation purpose. Further,
the city claims that it has carried the prima facie subject matter jurisdiction burden, presenting
sufficient evidence to suggest that the structure was a vessel.
Amici for the Respondent
Five amici wrote in support of the city’s position that federal maritime jurisdiction was
correctly applied in this case as Mr. Lozman’s structure was a vessel under 1 U.S.C. § 3. These
amici include: the Maritime Law Association, a group of thirty-six maritime law professors, the
Marine Bankers Associaiton, Professor Kevin M. Clermont, and the United Brotherhood of
Carpenters and Joiners of America. Amici seek to avoid a standard based on the subjective intent
of owners, especially as the structure’s status as a vessel is foundational to assertions of maritime
lien mechanisms.
Respondent Amicus 1: Maritime Law Association (“MLA”) of the United States
The MLA, a bar association for lawyers specializing in maritime law, supports the
Eleventh Circuit’s bright-line rule. The MLA is concerned that the standard proposed by Mr.
Lozman and his amici could present substantial issues of uniform application.
The MLA reasoned that 1 U.S.C. § 3 has a plain meaning, presenting a question if the
structure was either actually used as a mode of marine transportation or the capacity to do so it
would become a “vessel.” Brief for the MLA as Amicus Curiae Supporting Respondent at 6-7.
The MLA went on to note that the physical characteristics of the structure and its present
situation are relevant in determining whether a structure could move on short notice over water.
See id, at 13-14. What is irrelevant instead, in its argument, is the owner’s subjective,
unverifiable, and non-binding intent about the use for the structure. Further, the MLA notes that
seaworthiness of a structure is also not relevant to “vessel” status determination. If the structure
can be moved over water, even to its detriment, it would trigger “vessel” categorization in this
view.
The MLA contends that a structure need not be in navigation to become a vessel.
Instead, the status would require the capability to move or be moved over water. The Association
regards “vessels in navigation,” a classification that might trigger an array of maritime
requirements such as the Jones Act, as a subset of the larger “vessel” categorization. Id, at 7, 15-
30. Here, the Court is only concerned with the “vessel” element, not whether a vessel is in
navigation. By separating out the concepts of “vessels” and “vessels in navigation,” the MLA
addresses potential federalism concerns raised by Mr. Lozman and his amici. According to the
MLA, such concerns need not arise if these concepts are kept separate and the statutory
definition in 1 U.S.C. § 3 is properly applied. Finally, the MLA points out that state laws and
Coast Guard regulations should not be taken into account in “vessel” status determinations as
neither of these sources would trump the statute’s binding interpretation.
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Respondent Amici 2: Thirty-Six Maritime Law Professors
The group of Thirty-Six Maritime Law Professors argues that an owner’s subjective
intent should play no role in the “vessel” status determination. According to the professors, an
owner’s subjective whims should not matter and arguments based on owner intent should be
barred as they are potentially self-serving and highly malleable. The professors oppose any form
of owner-intent arguments, claiming that they “will do a great deal of harm without bringing
anything useful into the inquiry.” Brief for Thirty-Six Maritime Law Professors as Amici Curiae
Supporting Respondent at 23. Comparatively, a structure’s objective purposes are not as readily
changed and should be included in the Court’s analysis. The professors see a distinction between
an owner’s subjective intent and a craft’s objective purposes. As such, they are concerned with
some of the opinion’s language in the Eleventh Circuit. Particularly, they express some
reservations about the court’s dicta where it seemed to conflate these objective craft purposes
and an owner’s intent. Id, 31.
Here, the professors claim that the city had presented substantial evidence of the
structure’s “vessel” status and Mr. Lozman had presented little to no contradictory evidence in
rebuttal. Id, at 6-15. Therefore, they see a remand as a “pointless” exercise and suggest
affirmation of the Eleventh Circuit standard. Id, at 32.
Respondent Amicus 3: National Marine Bankers Association (“NMBA”)
NMBA is considerably concerned about the effect of any change in determining
“vessel” status on maritime lending. They claim that confusion about the legal classification of a
marine structure could have a “crippling” effect on the recreational boating industry. Brief for
NMBA as Amicus Curiae Supporting Respondent at 4. Maritime lenders’ uncertainty about the
legal classification of the collateral and their available remedies could hamper marine lenders
ability to recover debts and could result in a chilling effect on maritime lending. Id, at 9.
NMBA claims that adopting Mr. Lozman’s proposed standard would cause its
members to stop relying on documentation currently executed in marine loan transactions. Id, at
17. NMBA asserts that its lenders require certainty when lending; without this certainty, there
may be decreased access to marine consumer credit and further strain the fragile market recovery
of the maritime lending industry. Id, at 18-19. Allowing owners to subvert existing lending
agreements based on changed intended use places additional risk in the maritime lending market,
which may lead to increased interest rates for consumers.
Respondent Amicus 4: Professor Kevin M. Clermont
Professor Clermont advocates for a prima facie standard for the “vessel” status
determination as the issue of federal maritime jurisdiction overlaps with the merit questions.
According to Prof. Clermont, Mr. Lozman’s question of whether his structure is a “vessel”
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presents two overlapping inquiries, one of jurisdiction and one on the merits. As the “vessel”
status would trigger federal maritime jurisdiction and would also be one of the major questions at
a trial on the merits, Prof. Clermont suggests that the litigants should not have to prove the case
conclusively prior to discovery but instead provide sufficient evidence to survive the relevant
summary judgment standard. Brief for Professor Kevin M. Clermont As Amicus Curiae at 11,
17. Here, Prof. Clermont suggests that there was a reasonable likelihood that Mr. Lozman’s
structure was a “vessel” due to the lowered standard of decision caused by the overlapping
questions of jurisdiction and merits.
Respondent Amicus 5: United Brotherhood of Carpenters and Joiners of America
(“UBCJA”)
Many of UBCJA’s 500,000 members work on special-purpose craft which may have
their “vessel” status affected by the outcome of this case. Using the example of the Jones Act,
the UBCJA notes that the statutory definition of 1 U.S.C. § 3 was designed to sweep broadly, but
that other maritime laws and regulations are often delimited. Brief of UBCJA As Amicus Curiae
at 10-11. Further, the UBCJA went on to discuss the nature of special-purpose craft, such as the
dredger in Stewart or a floating derrick, as these craft retain their “vessel” status even while they
remain stationary when they perform their work. Id, at 20. In its experience working on special-
purpose vessels, UBCJA suggests that vessels do not become extensions of land or lose their
“vessel” status merely because they only move across water occasionally. Id, at 12.
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Appendix C
Selected Relevant Cases
Name of Case Citation
(Chronological
Order)
Structure
Involved
Vessel /
Non-Vessel
Rationale
The Hendrick
Hudson
3 Ben. 419
(S.D.N.Y. 1869)
Decommissioned
Steamboat
Non-Vessel Steamboat was no longer
engaged in “commerce or
navigation,” having been turned
into a dockside hotel. p. 419
Cope v. Vallette
Dry Dock Co.
119 U.S. 625
(1887)
Floating Drydock Non-Vessel Drydock was permanently
moored for 20 years and
operated like “a floating bridge,
or meeting-house, permanently
moored or attached to a wharf.”
p. 630
Ruddiman v. A
Scow Platform
38 F. 158
(S.D.N.Y. 1889)
Floating Scow
Platform
Non-Vessel Platform was capable of being
towed from place to place but
“was not designed or used for
the purpose of navigation, nor
engaged in the uses of
commerce, nor in the
transportation of persons or
cargo.” p. 158
Evansville &
Bowling Green
Packet Co. v.
Chero Cola
Bottling Co.
271 U.S. 19
(1926)
Wharfboat Non-Vessel Wharfboat “not practically
capable of being used as a
means of transportation” as it
“remained at the same point”
and “did not encounter the
perils of navigation to which
craft used for transportation are
exposed” while in use. P. 21, 22
West v. United
States
361 U.S. 118
(1959)
Deactivated
Liberty ship
Non-Vessel While the ship had been towed
previously, it was not in active
maritime service. p. 121
15
Miami River Boat
Yard, Inc. v. 60’
Houseboat, Serial
No. SC-40-2860-
3-62
390 F.2d 596
(5th Cir. 1968)
Houseboat Vessel Houseboat “afford[ed] a water-
borne place to live with the
added advantage of at least
some maritime mobility” and
was towed a great distance. p.
597
Pavone v. Miss.
Riverboat
Amusement Corp.
52 F.3d 560 (5th
Cir. 1995)
Floating Casino,
Restaurant, and
Bar
Non-Vessel Structure had been towed, but
was moored to shore in “semi-
permanent or indefinite
manner” by sunken steel
pylons, primary purpose was to
support dockside casino
structure, and was removed
from navigation. p. 570
Stewart v. Dutra
Constr. Co.
543 U.S. 481
(2005)
Dredge Vessel Even with limited means of
self-propulsion, dredge’s
function was to “move through
Boston Harbor” and was “used
to transport” workers and
equipment over water. p. 495
Board of
Comm’rs v. M/V
Belle of Orleans
535 F.3d 1299
(11th Cir. 2008)
Riverboat Casino Vessel Structure was “capable of
moving over water, albeit to her
detriment” and was “capable of
being transported under tow.”
p. 1312
Crimson Yachts v.
Betty Lyn II
Motor
603 F.3d 864
(11th Cir. 2010)
Yacht Vessel Craft had been drydocked,
lifted from the water, and
temporarily disabled for
repairs, but it remained a vessel
as it could be towed upon 24
hours’ notice. p. 875