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It is a Gunwhale, a sponson, a pontoon, a hull Mr. Chief Justice

So, many of my facebook friends want to me talk like a pirate in honor of the seemingly-every-month-talk-like-a-pirate day.

On the first day of the Supreme Court's term, they took up a case we have posted about (here, here and here).  The transcript of the oral argument is available and can be found here. 

The statute in question is, 1 U.S.C. §3 which 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.

Early in the hearing, CJ Roberts and Justice Scalia cast doubt on using a "purpose" test instead of the "capability" test expressly called for in the statute. Justice Alito joined in later.  Justice Kagan called this "purpose" test to be a "strange synonym" for a function test.

When the City's attorney argued, the case turned surreal:

MR. FREDERICK:  Our position is that the houseboat is a vessel under section 3 because it floats, moves, and carries people or things on water, as the statutory -

CHIEF JUSTICE ROBERTS: Just like an inner tube, right?

MR. FREDERICK: No. An inner tube actually does not --

CHIEF JUSTICE ROBERTS: Floats, can be towed, can carry a person.

mR. FREDERICK: Well, a person actually -most of the body parts of a person would be underwater and would be through the water, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: One of those inflatable rafts where most of the parts of the people -

MR.FREDERICK: The test would be what's the practical capability, and a raft that has a bottom actually could very well be a vessel under the appropriate standard of practical capability.

JUSTICE BREYER: With cup. What about the cup.

MR. FREDERICK: Cup is not because a cup doesn't float.

JUSTICE BREYER: Oh, well, this is lighter than you think.

JUSTICE SOTOMAYOR: No. How about a garage door?

JUSTICE KAGAN: Take the inner tube and, you know, paste a couple of pennies on the inner tube. Now it carries things. There are things on the inner tube, and it floats.

Later on:

MR. FREDERICK: Because the physical characteristics of this houseboat all point to the attributes of being a vessel. It floats, it moves, it carries. It's got nothing to do -

CHIEF JUSTICE ROBERTS: It doesn't have -the thing that makes something look most like a boat in my view is a raked bow. That tells you that that's what they want to use it for, to move through the water. This is straight up and down.

MR. FREDERICK: Well, Mr. Chief -

CHIEF JUSTICE ROBERTS: It doesn't have a what are the things called on the side, the elevated sides that you would look for in a boat.

Hull?  Gunwhale?  Sponson?

No easy answers with this one.  I think that you have to read the word "transportation" as support for the concept of a "purpose" test...but smart minds can disagree....that is why we have one Supreme Court.

Meeting Ms. Kelo.....

During a recent trip to New London, we stopped by to visit Ms. Kelo's property that was the subject of the Kelo v. New London litigation.

Pass in Review