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More Coverage of "Vessel" Case from Blogosphere

Because I am primarily a land use attorney, with an affinity to the sea, the case of Lozman v. Riviera Beach allows me to have my cake, and eat it too.

The Blogosphere is humming about the decision:

Gideon Kanner's post captures the essence of the opinion, then adds his usual, customary insights:

The interesting part of the majority opinion is that it contains a picture of the subject home. So take a look at it, and using the late Justice Potter Stewart’s famous legal test for pornography (“I know it when I see it”) tell us if you would consider Lozman’s waterborne pride and joy a vessel or a house. But before you get carried away, do reflect on the fact that the California Supreme Court once held that a freeway is an electric railway, and that — in their Lordhips’ own words in another case — “our holding was dictum.”

Finally, no case worth its salt (no pun intended) is complete without reference to money. First, one telling argument by the feds, arguing as amicus curiae, was that if this thing were classified as a vessel, it would abruptly impose heavy burdens on the Coast Guart which has the duty of inspecting vessels. Second, when the city seized Lozeman’s home it had to post a bond under maritime law, which it did. So inasmuch as the city was wrong in destroying Lozeman’s floating home, it will now have to pay for it. While we have no idea what a floating Florida home may be worth, that $25,000 bond will come in handy in discharging the city’s monetary obligation to Lozman.

 

SCOTUS: No, Mr. Chekov, A Houseboat Is Not A "Wessel" ... Uhh, "Vessel"

This just in: in an 7-2 opinion authored by Justice Breyer, the U.S. Supreme Court held in Lozman v. City of Riviera Beach, No. 11-626, that a houseboat is not a "vessel" under 1 U.S.C. § 3  (a "watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water") because a "reasonable observer, looking to the home's physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water."

The Court first concluded that the case was not moot, even though the houseboat had been seized, sold at judicial auction, and then destroyed.

Here's something you don't see every day: the opinion even has two photos in an Appendix (of the non-vessel, and a wharf boat in 1918 from the legislative history). See p. 17.

More to follow after I've had a chance to review the opinion and the dissent by Justice Sotomayor (joined by Justice Kennedy), who objected to the "reasonable observer" standard.

The case preview is here. The briefs of the parties are posted here.

Vessel Must Be Capable of Transport

The Supreme Court has decided the "vessel" case. More to follow, but the opinion is available at http://www.law.cornell.edu/supremecourt/text/11-626

Criticism of the Jones Act - Natural Disasters

Ah, the Jones Act.

In the wake of Hurricane Sandy, the President waived the Jones Act provisions barring foreign built tankers from carrying cargo between U.S. ports.

Is it a "statutory relic" which is outdated and counter-productive? Does it cause consumer prices to increase, unfairly hitting remote communities like Alaska, Hawaii and Puerto Rico? Should it be scrapped?

This Op-Ed from Bloomberg suggests that it is. Per this article:

Enacted in 1920, when memories of American ships being torpedoed off the East Coast were fresh, the Jones Act was designed to ensure that the U.S. had a fleet of loyal merchant ships in times of national emergency. The law, formally known as the Merchant Marine Act, required all vessels carrying goods between domestic ports to have been built in the U.S., as well as owned and crewed by Americans. Other provisions granted crew members the equivalent of health and disability protection.

By shutting out foreign competition, the law limits shipping capacity and inflates U.S. freight rates. Like most forms of protectionism, it benefits a few to the detriment of many. One analyst estimated that shipping oil from the Gulf Coast to the Northeast on foreign vessels would cost $1.20 a barrel versus $4 on U.S. ships. Although no one is quite sure of the overall economic burden imposed by the act, a 1999 study by the U.S. International Trade Commission found that ending it would save more than $1.3 billion a year.

Hawaii Supreme Court Reviews Contractor Licensing Law - Amicus Brief Filed

Cross-posted from Anna H. Oshiro's construction law blog and Robert H. Thomas' property law blog:

This case involves contractors' licensing and whether the holder of a specialty renovation license is entitled to do certain specialty renovation work as "incidental and supplemental" to that license. The Hawaii Intermediate Court of Appeal ruled in favor of the licensee, and dismissed a challenge by another specialty contractor, and held that the Contractors' License Board was within its discretion when it adopted administrative rules defining the term "incidental and supplemental."

The Hawaii Supreme Court accepted certiorari to review this question. The General Contractors Association of Hawaii filed an amicus brief supporting the CLB's interpretation of the rule, asking the Hawaii Supreme Court to affirm the judgment. From the brief's Introduction:

This case implicates much more than the scope of contractors’ licenses, and whether a contractor with a C-5 specialty renovation license entitling it in a renovation project to perform “any other work” that will not change the structure, must employ a C-22 subcontractor to replace windows. Rather, this case asks whether the Board’s definition of “incidental and supplemental” work deserves deference because it is consistent with the plain meaning of those words, and whether the Board—comprised of five general contractors, five specialty contractors, and three members of the public who have been charged with the responsibility of carrying out the mandate of the contractor licensing statutes—“possesses expertise and experience in [its] particular field.” Okada Trucking Co. v. Bd. of Water Supply, 97 Haw. 450, 458, 40 P.3d 73, 81 (2002) (“insofar as an administrative hearings officer possesses expertise and experience in his or her particular field, the appellate court ‘should not substitute its own judgment for that of the agency’ either with respect to questions of fact or mixed questions of fact and law.”).

Petitioners invite this Court to go much further than merely overturning the Hearings Officer’s conclusion that window replacement was “incidental and supplemental” to a C-5 license. It urges the Court to “substitute its own judgment for that of the agency” by rewriting the Board’s rules to define “incidental and supplemental” to mean only “minor” work.

 

General Contractors Association of Hawaii's Amicus Curiae Brief in Support of Respondent/Defendant-Appellee...