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VOL. 128 | NO. 36 | Thursday, February 21, 2013

Vic Fleming


By Vic Fleming

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If it looks like a boat and floats, it might not be a boat. So held the Supreme Court in mid-January. Fane Lozman was the owner of a house-like plywood structure with French doors on three sides. It consisted of a sitting room, bedroom, closet, bathroom, kitchen, stairway, and some office space upstairs. An “empty bilge space” below its main floor kept it afloat.

From 2006-2009, Lozman docked this item at a marina owned by the City of Riviera Beach. During this time, he lived in it and was party to a dockage agreement with the City. In 2007, the City enacted “new” rules, requiring houseboat owners to have a specified amount insurance, proper registration, and a new dockage agreement.

From mid-’07 to early ’08, the City tried unsuccessfully to evict Lozman under state law. In April ’09, the City “arrested” the boat itself, commencing an in rem admiralty action, City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, in U.S. District Court.

Lozman’s pro-se motion to dismiss was rejected. The district court held that, for admiralty jurisdictional purposes, Lozman’s houseboat was a “trespassing vessel” on City property. Judgment for past due dockage fees of some $3,000, plus $1 for the trespassing, was entered against Lozman. The City bid the boat in at a judicial sale and then destroyed it.

This action was upheld in the Court of Appeals, which said the floating home was a “vessel” because it was “capable of movement over water” and the owner’s subjective intent to remain moored “indefinitely” at a dock could not show the contrary. The Supreme Court, 7-2, disagreed, siding with Lozman.

Citing language from a Fifth Circuit case (“No doubt the three men in a tub would also fit within our definition [of a vessel], and one probably could make a convincing case for Jonah inside the whale”), Justice Breyer wrote, “Not every floating structure is a ‘vessel.’ To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not ‘vessels,’ even if they are ‘artificial contrivances’ capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so.”

The test the court came up with, Breyer acknowledged, is general. A floating residence is not a vessel, he said, “unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it to be designed to any practical degree for carrying people or things on water.

“But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water,” wrote Breyer, who was joined by Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg, Alito, and Kagan.

Justices Sotomayor and Kennedy dissented. Sotomayor wrote that the majority’s introduction of what a “reasonable observer” might glean from examining a craft muddies the issue. She’d call for “clear and predictable legal rules for determining which ships are vessels.”

The case is headed back to district court in Florida, where Lozman will seek damages for the loss of the home.

Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.

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