Argument preview: Defining a houseboat — a house or a boat?
on Sep 28, 2012 at 12:07 am
The Supreme Court at 11 a.m. on Monday will hold one hour of oral argument on how to define a “vessel” for purposes of moving a dispute over a floating structure into the special court that handles maritime commerce. Arguing first in the case of Lozman v. Riviera Beach, Fla. will be Stanford law professor Jeffrey L. Fisher, representing the owner of a houseboat that was at the center of the dispute, Fane Lozman. Fisher will have twenty minutes of time. Partly supporting Lozman, Curtis E. Gannon, an Assistant to the U.S. Solicitor General, will argue for the federal government as an amicus, with ten minutes of time. The Florida city will be represented by David C. Frederick of the Washington office of Kellogg, Huber, Hansen, Todd, Evans & Figel, with thirty minutes of time.
The dispute in this case, in its basic facts, hardly seems like the stuff of a significant Supreme Court case. It involves a rather ordinary running feud between a quite cantankerous local citizen and a city government, with each side highly suspicious of the other’s motives, and seemingly determined to fight out each phase of their spat until the bitter end; something, perhaps, that “Judge Judy” could easily handle. And the central object in the case was (until it was destroyed by the city) a plywood floating structure that Fane Lozman made his home; in court papers, it gets this formal designation: “that certain unnamed gray, two story vessel approximately fifty-seven feet in length, her engines, tackle, apparel, furniture, equipment, and all other necessaries, appertaining and belonging in rem.” The “in rem” means that the city of Riviera Beach’s lawsuit is against the vessel itself, not against its owner, Lozman.
Still, the case does rank as worthy of the Supreme Court because there is a significant legal principle at stake. The case will require the Court to spell out when a floating structure qualifies, legally, as a “vessel,” such that a dispute in which it is involved must be resolved in admiralty court under special rules of maritime law. The case has attracted the interest of the federal government, as well as of groups whose members make their living in marine industries, plus lawyers in the specialized field of maritime law, owners of houseboats, and even the operators of riverboat casinos. They all will be affected by how the Court defines “vessel.”
There would have been no case, though, if Fane Lozman and the city of Riviera Beach had worked out their differences on whether Lozman was paying what he supposedly owed for using city utilities in his floating home, and if Lozman had not suspected that the city was acting lawlessly in trying to sneak through a plan to redevelop the marina where his home was tied up at a dock. The feud has made for ongoing, lively coverage in local newspapers, with Lozman sometimes portrayed as the Biblical David to the city’s Goliath.
Lozman, whom the city’s lawyers have sought to belittle by suggesting that he is a millionaire quibbling over a few thousand dollars, bought his floating home in 2002. A residence seemed to be its only practical use: it was not made to navigate in waterways, because it had no bilge pumps, no steering mechanism, no navigation aids, no lifeboats or other rescue equipment, no propulsion, and a square bow that did not make for smooth plowing through waves. It had no Coast Guard hull number, so it could not be registered for operation as a boat. Lozman lived in it for three years at dockside in North Bay Village in Florida. It was damaged in Hurricane Wilma in 2005, and Lozman decided to move it to Riviera Beach. It was towed there, and he then tied it up at a marina run by the city. It had power and sewer lines reaching to the dock, and connections for cable TV and Internet access. He signed a lease in March 2006 with the city, intending to live in the structure indefinitely.
Trouble with the city began soon, after he had filed a lawsuit against the city, claiming it was attempting to sell the marina to private developers, but in doing so had violated the state’s open meetings law. His lawsuit also contended that the city was abusing its power to seize private property for public use. The city’s redevelopment plan fell through. On the premise that his dog — a small dachshund — was not muzzled, the city ordered him evicted from its marina. The city also claimed he was using unlicensed workmen to do work on the houseboat. The jury in his lawsuit ruled for him, and included in its ruling a finding that he had been the target of improper retaliation for speaking out against city policies. The next move was the city’s, adopting a new marina docking agreement with more stringent conditions. Among the new conditions was a requirement that any vessel in the marina be fitted so that it could be moved in an emergency; Lozman would have to leave the marina unless he complied, the city said. Lozman refused to sign.
The city then filed a claim against Lozman in admiralty court. The reason: a federal law provides that anyone who provides “necessaries” to a “vessel” establishes the right to collect what is owed for those materials or services, and a right to sue in admiralty court directly against the vessel (the “res”) to enforce the lien covering the amount due. The city contended that Lozman owed $3,039.88 in unpaid dockage fees. When a maritime lien is submitted for collection, the floating object to which the lien attaches is “arrested” by a U.S. marshal and is taken into what amounts to custody. That is what happened to Lozman’s houseboat.
A judge ruled for the city, and ordered the houseboat sold at an auction. Someone acting for Lozman put in a bid, but the city topped it with a bid of $4,100. It thus took possession of the houseboat. City officials later said they tried to sell it or give it away, but, when such efforts failed, the city destroyed it. City officials now claim, through their lawyers, that they spent more than $32,000 in moving and maintaining the houseboat after it was “arrested.” In fact, the city’s lawyers have told the Supreme Court that, after the case is over, they may sue Lozman to recover some of the money they spent after they took over the houseboat. In the meantime, the city has posted in federal court a $25,000 bond in case Lozman ultimately wins.
(After the Supreme Court had agreed to hear Lozman’s appeal, claiming that the case should never have gone into admiralty court because, he argued, his houseboat was not a “vessel” under maritime law, the Supreme Court noticed that the vessel had been sold and later destroyed. It asked all of the lawyers involved in the case whether that made the dispute a dead one; all of the lawyers filed new briefs arguing that, under traditional maritime law principles, the fate of a floating structure did not “moot” a controversy over it, especially when money had been put up as a substitute for the structure. Whether the Court will accept that argument is up to the Justices; if they don’t, the case could end without a ruling.)
The ruling against Lozman in the admiralty court was upheld by the Eleventh Circuit Court. It ruled that the houseboat was, legally, a “vessel” under maritime law. It relied on an opinion it had issued in 2008, which held in a floating casino case that a watercraft capable of being towed on the water without sinking was capable of maritime transport, even if it could not propel itself, and thus qualified as a vessel.
Petition for Certiorari
Lozman’s lawyers filed a petition for review in November of last year, raising the single issue of whether a floating structure indefinitely tied to a dock but not intended for use in marine commerce was a vessel, which would make it eligible for its fate to be resolved under maritime law in admiralty court. The petition made two arguments: first, that the lower federal and state courts had reached conflicting results on the definition of a “vessel,” and, second, that the legal dispute was over “a pivotal question of federal maritime law.”
On the conflict issue, Lozman’s counsel contended that the Eleventh Circuit’s sole focus on whether a floating structure could be towed without sinking was contradicted by rulings of the Fifth and Seventh Circuits, both of which have focused upon the owner’s intended and actual use of such a structure. If the Eleventh Circuit view prevailed, the petition argued, it would mean that “a wooden garage door” in the water could qualify as a vessel — a suggestion that Justice Stephen G. Breyer had put forth during oral argument in another case in 2005. This case, the petition said, should be granted to “put an end to this overly expansive test.”
On the impact of the dispute, the petition said the outcome of the case could affect “innumerable private and commercial owners of such structures,” and could affect “the regulatory ability of state and local governments across the country.”
Lozman’s petition drew the support of the Maritime Law Association of the U.S., which argued that the conflicting interpretations of the word “vessel” in maritime law “creates substantial uncertainty for maritime entities, and those who advise them, about what standards and rules apply to floating structures.” Litigation will be prolonged if that is not resolved in a uniform way, the association contended.
The city of Riviera Beach opposed Supreme Court review, arguing that the dispute was limited to the specific facts and circumstances of the controversy between Lozman and the city as the marina operator. Even Lozman had conceded, the opposition brief argued, that the case turned on the specific facts about how his structure was linked to the shore at the marina. Thus, the city contended, the case was a poor vehicle for confronting the legal definition of “vessel.” Moreover, it accused Lozman’s lawyers of misstating the facts in an attempt to try to make the case seem broader than it actually was.
The Court granted review of the case on February 21, after just one look at it at Conference. The Justices probably were satisfied that there was, indeed, a conflict among the lower courts on an issue of some consequence to maritime law.
Briefs on the Merits
Lozman’s brief on the merits is a combination of reliance on the words of the federal law defining “vessel” and on the pragmatic issue of how a floating structure is intended to be used. Under federal law, a vessel is defined as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” That definition, the brief argued, puts the focus both on the function — transportation on water — and the actual use. Lozman’s home, it added, “was not designed or used to move people or goods over water.” A theme that runs throughout the brief is that a structure like Lozman’s houseboat is, in essence, an extension of the land, not a watercraft.
The brief sought to draw a distinction between a “houseboat” and a “floating home.” The former does provide living accommodations, but also is intended to be moved over water under its own power, while the latter is used as a residence, and nothing more, according to the brief. The document also stressed that the two kinds of floating living arrangements are financed differently and taxed differently when sold. Describing in detail the physical structure of his floating home, Lozman’s brief noted that it had French doors on four sides and was only a few feet above the water and thus potentially subject to being swamped when moved.
On the legal side of the dispute, Lozman’s lawyers argued that Supreme Court precedents dating back to the nineteenth century hold that the purpose of a structure determined whether it is capable of serving as a means of transportation over water. A floating home does not fall within the description of vessels in those precedents, the brief argued, because it performs its function “by sitting still.”
The brief also argued that the special principles and benefits of maritime law, geared to the needs of actual maritime commerce involving moving vessels carrying goods or people, are ill-suited to governing disputes over floating structures that are more or less permanently moored to a dock and serving purposes other than maritime commerce.
The city of Riviera Beach, in its brief on the merits, argued that the proper test — one that it said the Eleventh Circuit had correctly applied in this case — is one of “practical capability.” It noted that Lozman’s houseboat had been towed over water for “hundreds of miles,” and thus was capable of being transported. It also noted that the houseboat was capable of, and did, leave the marina in “a matter of minutes.” Its links to the dock, the brief asserted, were “so flimsy” that they could not be an impediment to transporting it to another location in another waterway. Lozman had no legal right to remain indefinitely at a docket in the marina, so his attempt to claim it as an extension of the land was incorrect, the brief said.
Arguing that the key Supreme Court precedent in 2005, Stewart v. Dutra Construction Co., embraced the definition of vessel according to its “practical possibility,” the city’s brief said it is important — since the definition of vessel is related to court authority to resolve disputes over vessels — to have a simple jurisdictional rule that is easy to apply. It contended that “a practical-capability test is easy to apply.” In most cases, it added, “a watercraft that can float, carry objects, and be towed over water will qualify as a ‘vessel.'”
By contrast, it asserted, using Lozman’s test of the owner’s purpose “would spawn confusion and gamesmanship.” That test would turn on what each owner subjectively intended for the floating structure, and thus would enable an owner “to maneuver his craft in and out of vessel status.”
The Obama Administration has joined in the case, mostly but not entirely on Lozman’s side. The federal interest in the case, the government’s merits brief said, is engaged because the definition of “vessel” affects the working rights of those who labor aboard watercraft, and because the government has an obligation to inspect many types of floating structures and in working to promote “a viable and health maritime transportation industry.”
The government contended that “the mere ability to float and be towed across water” is not enough to establish a structure as “a vessel” under maritime law. Thus, it partially endorsed the “purpose or function” test that Lozman put forth. But the federal brief parts company with Lozman’s contention that the owner’s intent should be of major influence. In that regard, it suggested that the use of “objective criteria” to determine whether a structure is a vessel would assist in determining a structure’s “practical capability.” Among the “objective criteria” that it argued should be applied were whether the structure has “practical access to navigable water,” how it is tied up to the shore, whether it can withstand the hazards of navigating, and whether it can leave a mooring within a matter of a few hours. The Circuit Court was wrong, it contended, in denying the relevance of virtually all of those criteria.
The federal brief did not urge the Court to rule in Lozman’s favor explicitly. It called for the Court to vacate the Eleventh Circuit ruling, and send the case back to determine the status of Lozman’s structure using the tests the federal argument suggested.
Although the briefing in this case appears to suggest that the Court in the end needs to adopt one legal test or another, the Justices may well find that the outcome turns on the meaning of three words in the federal law that defines “vessel.” Those words are “means of transportation.” That would seem to put the focus squarely upon the mobility of a floating structure. That would appear to be more a matter of function than of human intention, and could be informed by what actual navigation requires. It would not take an expert in naval architecture to determine what the rigors of the sea demand of a vessel.
While Lozman would get at the question in significant part by focusing on the owner’s intent, supported by the nature of the physical link to the shore, and while the city of Riviera Beach would get at the question by focusing on towability, neither seems to get really close to the transportation issue. The federal government’s multi-factor proposal might well be closer to the status of transportability. The government approach would clearly rule out the “floating garage door” that Lozman fears might qualify as a “vessel” if towability is the standard. It also would tend, it seems, to support the idea that a houseboat — or, if one prefers, a floating home — ordinarily should look and act more like a boat before it can be treated as a “vessel.”
As a legal matter, the case probably turns more on a simple question of statutory interpretation, and not on the Court’s past precedents, which seem to point in a variety of different directions.
This case in plain English:
It is a very long tradition that legal controversies over boats and their role in transporting people and goods are better decided in a specialized court that focuses only on those issues. It is called an admiralty court and it makes its decisions according to maritime law — essentially, legal standards that govern the business of transportation by sea. Admiralty law actually dates back before Roman times, but also is very modern in the sense that it deals with such things as liability for oil spills, for example. Many such disputes involve the rights of sailors, or others who work abroad floating structures.
In the Florida case now before the Supreme Court, the issue turns on when a dispute over a floating structure can be filed and decided in an admiralty court. Such a case must involve a “vessel,” but the federal law that defines “vessel” is not very precise. It focuses on a structure that can work as a “means of transportation.” The Supreme Court has spent generations of time and effort trying to sort out what a “vessel” is, in legal terms. Is a barge a “vessel”? Is an oil platform with a fixed position in the ocean a “vessel”? And now the Court is faced with deciding whether a houseboat, or a “floating home,” is a “vessel.”
Many houseboats, of course, have engines and are built in such a way that they can move about over water, carrying occupants in a way that is quite similar to motor homes operating on the highway. There is no doubt that such a powered and moving conveyance qualifies legally as a “vessel.” But not every floating home is actually a boat, in the sense of having an engine, a steering mechanism such as a rudder, or electronic or manual devices that help trace the location of the structure on the water the way a modern GPS does for a car or truck. The houseboat that was in the center of the Florida case has none of those hallmarks of a boat. If it moved at all, it could do so only if it was towed, as it was several times. Is that enough to make it a “vessel,” legally speaking? In addition, that particular structure was tied up to a dock, and the owner intended to leave it there and live in it as his home. Is that intention enough to prove that it is not a “vessel”?
This particular houseboat was surrounded by controversy because it was tied up in a marina run by the city of Riviera Beach, Fla., and the city contended that the owner did not pay the full fees for keeping it there. So the city sued the boat itself — that is one of the peculiar facets of maritime law, the boat is treated as if it had its own legal personality — and asked the admiralty court to rule that the owner had to pay up, or else forfeit the houseboat to the city. The court ruled for the city, ordered the boat sold at auction, with the result that the city bid for it, and won ownership. After failing to sell it or give it away, it destroyed the houseboat. The controversy goes on — and this is another peculiar thing about maritime law — because the destruction of the floating structure does not put an end to the case, if there is anything left legally to decide. Here, there is something left to decide: who gets some or all of the $25,000 in funds that the city paid into a court account, in case it should ultimately lose the case in a court decision that the houseboat was not a “vessel” after all, so the dispute should not have gone to admiralty court in the first place.
The owner of the now-destroyed houseboat may yet get some of that deposited amount, if he wins.
[Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in this case. The author of this post operates independently of the law firm.]