The Supreme Court has recently granted certioriari to settle a circuit split regarding the definition of vessel. In 1 U.S.C. § 3, a vessel is “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” The question arises: what, specifically, does “capable of being used” mean? In the Fifth Circuit, a permanently-moored casino on shore power is not a vessel. De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th Cir. 2006). In the Eleventh Circuit’s Lozman v. City of Riviera Beach, Florida decision, the court held a permanently-moored houseboat is a vessel.
Conceivably at issue is not just whether floating casinos are vessels–the decision could encompass quarter barges, dry-docks, vessels under construction and vessels on dry-dock could all be re-evaluated. However, Justice Thomas has authored most of the recent maritime decisions and his opinions are usually short on broad-picture guidance.
Lozman is coming out of the Eleventh Circuit, as did Atlantic Sounding. Valladolid and Exxon v. Baker came out of the Ninth Circuit. Although the Fifth Circuit has one of the most active admiralty bars, not only have its recent cases not made it to the Supreme Court, it has fared poorly. In Atlantic Sounding and Exxon, the Supreme Court disagreed with the Fifth Circuit about the availability of punitive damages, and in Valladolid, the Supreme Court disagreed regarding Longshore status under the Outer Continental Shelf Lands Act.
The Eleventh Circuit brief and certiorari petition are available at SCOTUSblog.
Author: Harry Morse