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Houseboat Redux - Eleventh Circuit Reinstates Lawsuit

According to this report in the Miami Herald ("Houseboat activist Fane Lozman wins again; says he will seek million from city over civil rights"), the fellow who recently prevailed in the U.S. Supreme Court in Lozman v. City of Riviera Beach, No. 11-626 (Jan. 15, 2013) isn't giving up.

The Herald reports:

The 11th Circuit Court of Appeals reinstated a 2008 lawsuit Lozman filed against the city, claiming it repeatedly violated his civil rights by hiring a private investigator to trail him, kicking him out of public meetings and, at one point, having him arrested when he refused to leave.

"Today felt just a tad lower than winning at the Supreme Court," Lozman said shortly after the decision was announced. "The Supreme Court ruling was a 10. Today was a 9½."

...

But, while the high court’s ruling may have stung more, the 11th Circuit’s could be more costly.

When the nation’s high court in January ruled that the city improperly used ancient maritime law to seize and ultimately destroy Lozman’s 60-foot two-story floating home, the possible damages were somewhat fixed. City officials were faced with the prospect of paying Lozman for the $167,000 he claims it would cost to replace his home, the $300,000 he spent for attorneys and an undetermined amount to reimburse him for the money he shelled out for living expenses after his home was destroyed.

However, he said, if he succeeds in proving that the city violated his constitutional rights, the damages could skyrocket.

"If I was the city, I’d be concerned," he said. "That’s a seven-figure sum.

Download the 11th Circuit opinion here.

Lozman v. City of Riviera Beach, No. 11-15448 (11th Cir. Apr. 1, 2013)

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.

Pass in Review

Who Lives Here ....

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?

 

Diamond Head Lighthouse

Coast Guard Ensign After Dark

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.

Eleventh Circuit Holds Marine Surveyor Guilty for MARPOL Violations

In a question of first impression, the Eleventh Circuit affirmed the conviction of a marine surveyor for knowingly violating the MARPOL treaty while aboard a foreign vessel in a U.S. port.  The case is United States v. Pena and can be read here.

By way of legal background, MARPOL is the name of the International Convention for the Prevention of Pollution from Ships.  The United States is a signatory to MARPOL and passed the Act to Prevent Pollution from Ships.  33 U.S.C. 1901 authorizes the Coast Guard to implement MARPOL through issuance of regulations.  Among the regulations adopted to address pollution is the requirement that oily bilge water be maintained for discharge at a suitable facility in port or run through an oily-water-separator which removes much of the oil from the water thereby allowing at-sea discharge.  A ship's flag state has the responsibility to certify the ship's compliance with MARPOL by issuing an International Oil Pollution Prevention Certificate.  The flag state may use classification societies who employ surveyors to make the certification.

Facts:  A ship making a port call in Fort Lauderdale was inspected by the U.S. Coast Guard.  A classification society's surveyor signed the IOPP certificate for the ship.  Inspection of the vessel revealed that it did not have the required system to separate oily water and, in fact, had a "makeshift system of pumps and rubber tubes" to pump the oily waste from the bilge directly to the main deck where it could flow into the ocean.  The surveyor admitted that he had not tested the oily water separator and that he did authorize the ship's chief engineer to place the pumps in the bilge for use to pump the bilge water overboard, "but only in an emergency."  The surveyor was convicted. 

Analysis:  The surveyor challenged U.S. jurisdiction over the offense, which the court found was present.  Foreign ships in U.S. harbors face broad jurisdictional reach of U.S. laws.  The surveyor additionally challenged the sufficiency of the indictment and the jury instructions.  The court of appeals found both to be lawful and affirmed the conviction.

ABA Opening Assembly - CG TJAG

Even the Coast Guard