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Inevitable Shortcomings of Words: Vessels and other Contrivances

Sticks and stones may break my bones, but names will never hurt me.  A rose by any other name?

So, pray tell - what is a vessel?  I mean, practically, what does Congress mean when they say "vessel."  Do words matter?  Legislatures try to draft statutes to regulate a certain type of activity, but must use words to decribe the prohibition.  Times change - should the words governing our country change too?  [I'll leave the originalist/textualist/positivist debate to others, like Dorf On Law].

Next week, the Supreme Court will take on this case of "words" when they hear the case of Lozman v. City of Riviera Beach.  This case is generating a lot of buzz in the legal circles.  SCOTUSBLOG has good coverage, start with its post here.  My earlier posts, including briefs, are here, here and here.

1 U.S.C. §3 provides:

“Vessel” as including all means of water transportation.  The word “vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

The challenge is that many things are capable of moving people or cargo across the water.  Propulsion is not a good test because cargo barges don't have the intrinsic ability to self-propel, yet all would agree that barges are "vessels."  Surfboards?  Outrigger canoes?

The overlay for this dispute is the admiralty jurisdiction of the federal courts.  While it seems ridiculous that the federal government would have jurisdiction over a surfboard, doesn't the shoe fit?

In the end, the practical must outweigh the academic, lest the academic lead to a ridiculous result.  Some would just say that Congress must go back in and fix the statute and avoid the judicial legislating.  But, in the end, can words EVER fully define what is a vessel and what shouldn't be a vessel?  Propulsion test?  Navigation test?  Barges = vessel, surfboards=not a vessel; sailboats=vessel, houseboats=not a vessel?

My take - when initially constructed, or reconstructed, was the intent to use the watercraft for transport of passengers or cargo on the water.  The federal government should concern itself with the "transport" aspect of a marine vehicle, not whether it floats.  Thus, if intended to be used to transport, then it should be a vessel, regardless of its current outfit of equipment.  This would mean that surfboards and outrigger canoes would indeed fit the definition, (hopefully the regulating authorities opt out of regulating these de jure vessels).  Floating restaurants, permanently affixed casino-riverboats, and the like were not intended (at construction or reconstruction) to be used to transport passengers or cargo, so they would escape the federal jurisdiction.

What are words for anyway?

 

CJ Cantil-Sakauye

CJ Cantil-Sakauye Speaking to Hawaii State Bar Convention

Diamond Head Lighthouse

Coast Guard Ensign After Dark

Best Lawyers of 2013 - Eminent Domain and Condemnation Law

Special thanks and mahalo to my peers and, hopefully, my readers for my recent selection to the Best Lawyers, Lawyer of the Year for 2013 in the practice area of eminent domain and condemnation law.

 

New Fisheries Law Case from Ninth Circuit - Pacific Coast v. Banks

New case regarding the National Marine Fisheries Service plans for the Pacific groundfish fishery and trawler groundfishing regulations.  The case is Pacific Coast Federation of Fishermen's Association v. Banks.  Opinion can be found here.

The opinion is heavy on statute and regulation, particularly the National Environmental Policy Act, the Magnuson-Stevens Fisheries Conservation Management Act and the Administrative Procedures Act, but the opinion is light on readability, so I will sum up:  old fishing regulations caused sub-optimal yields because regulations had to protect impacts on bycatch.  NMFS came up with a new approach that established quotas by sector of fishing community (trawl, non-trawl, shore). The court found that the federal government had wide discretion to parse the allocations and quotas among the fishing communities, even in seeming arbitrary fashion.

New Longshore Case from Ninth Circuit - en banc - Price v. Stevedoring Services

Brand new, hot off the press Longshore case from the Ninth Circuit Court of Appeals, sitting en banc, but I am running around this week and must blog it later (come see us at www.lawinfilm.com to see where we are spending our evenings this week).

The case is Price v. Stevedoring Services of America and it can be found here.

My 30 second skim:  Director, OWCP litigation positions are not entitled to Chevron deference, only the Benefits Review Board decisions are.