LOZMAN v. RIVIERA BEACH

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–626

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FANE LOZMAN, PETITIONER v. THE CITY OF RIVIERA BEACH, FLORIDA

on writ of certiorari to the united states court of appeals for the eleventh circuit

[January 15, 2013]

Justice Breyer delivered the opinion of the Court.

The Rules of Construction Act defines a “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U. S. C. §3. The question before us is whether petitioner’s floating home (which is not self-propelled) falls within the terms of that definition.

In answering that question we focus primarily upon the phrase “capable of being used.” This term encompasses “practical” possibilities, not “merely . . . theoretical” ones. Stewart v. Dutra Constr. Co., 543 U. S. 481, 496 (2005) . We believe that 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. And we consequently conclude that the floating home is not a “vessel.”

I

In 2002 Fane Lozman, petitioner, bought a 60-foot by 12-foot floating home. App. 37, 71. The home consisted of a house-like plywood structure with French doors on three sides. Id., at 38, 44. It contained a sitting room, bedroom, closet, bathroom, and kitchen, along with a stairway leading to a second level with office space. Id., at 45–66. An empty bilge space underneath the main floor kept it afloat. Id., at 38. (See Appendix, infra, for a photograph.) After buying the floating home, Lozman had it towed about 200 miles to North Bay Village, Florida, where he moored it and then twice more had it towed between nearby marinas. In 2006 Lozman had the home towed a further 70 miles to a marina owned by the city of Riviera Beach (City), respondent, where he kept it docked. Brief for Respondent 5.

After various disputes with Lozman and unsuccessful efforts to evict him from the marina, the City brought this federal admiralty lawsuit in rem against the floating home. It sought a maritime lien for dockage fees and damages for trespass. See Federal Maritime Lien Act, 46 U. S. C. §31342 (authorizing federal maritime lien against vessel to collect debts owed for the provision of “necessaries to a vessel”); 28 U. S. C. §1333(1) (civil admiralty jurisdiction). See also Leon v. Galceran, 11 Wall. 185 (1871); The Rock Island Bridge, 6 Wall. 213, 215 (1867).

Lozman, acting pro se, asked the District Court to dismiss the suit on the ground that the court lacked admiralty jurisdiction. See 2 Record, Doc. 64. After summary judgment proceedings, the court found that the floating home was a “vessel” and concluded that admiralty jurisdiction was consequently proper. Pet. for Cert. 42a. The judge then conducted a bench trial on the merits and awarded the City $3,039.88 for dockage along with $1 in nominal damages for trespass. Id., at 49a.

On appeal the Eleventh Circuit affirmed. Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F. 3d 1259 (2011). It agreed with the District Court that the home was a “vessel.” In its view, the home was “capable” of movement over water and the owner’s subjective intent to remain moored “indefinitely” at a dock could not show the contrary. Id., at 1267–1269.

Lozman sought certiorari. In light of uncertainty among the Circuits about application of the term “capable” we granted his petition. Compare De La Rosa v. St. Charles Gaming Co., 474 F. 3d 185, 187 (CA5 2006) (structure is not a “vessel” where “physically,” but only “theoretical[ly],” “capable of sailing,” and owner intends to moor it indefinitely as floating casino), with Board of Comm’rs of Orleans Levee Dist. v. M/V Belle of Orleans, 535 F. 3d 1299, 1311–1312 (CA11 2008) (structure is a “vessel” where capable of moving over water under tow, “albeit to her detriment,” despite intent to moor indefinitely). See also 649 F. 3d, at 1267 (rejecting views of Circuits that “ ‘focus on the intent of the shipowner’ ”).

II

At the outset we consider one threshold matter. The District Court ordered the floating home sold to satisfy the City’s judgment. The City bought the home at public auction and subsequently had it destroyed. And, after the parties filed their merits briefs, we ordered further briefing on the question of mootness in light of the home’s destruction. 567 U. S. ___ (2012). The parties now have pointed out that, prior to the home’s sale, the District Court ordered the City to post a $25,000 bond “to secure Mr. Lozman’s value in the vessel.” 1 Record, Doc. 20, p. 2. The bond ensures that Lozman can obtain monetary relief if he ultimately prevails. We consequently agree with the parties that the case is not moot.

III A

We focus primarily upon the statutory phrase “capable of being used . . . as a means of transportation on water.” 1 U. S. C. §3. The Court of Appeals found that the home was “capable” of transportation because it could float, it could proceed under tow, and its shore connections (power cable, water hose, rope lines) did not “ ‘rende[r]’ ” it “ ‘practically incapable of transportation or movement.’ ” 649 F. 3d, at 1266 (quoting Belle of Orleans, supra, at 1312, in turn quoting Stewart, 543 U. S., at 494). At least for argument’s sake we agree with the Court of Appeals about the last-mentioned point, namely that Lozman’s shore connections did not “ ‘render’ ” the home “ ‘practically incapable of transportation.’ ” But unlike the Eleventh Circuit, we do not find these considerations (even when combined with the home’s other characteristics) sufficient to show that Lozman’s home was a “vessel.”

The Court of Appeals recognized that it had applied the term “capable” broadly. 649 F. 3d, at 1266. Indeed, it pointed with approval to language in an earlier case, Burks v. American River Transp. Co., 679 F. 2d 69 (1982), in which the Fifth Circuit said:

“ ‘No doubt the three men in a tub would also fit within our definition, and one probably could make a convincing case for Jonah inside the whale.’ ” 649 F. 3d, at 1269 (brackets omitted) (quoting Burks, supra, at 75).

But the Eleventh Circuit’s interpretation is too broad. Not every floating structure is a “vessel.” To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not “vessels,” even if they are “artificial contrivance[s]” capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so. Rather, the statute applies to an “artificial contrivance . . . capable of being used . . . as a means of transportation on water.” 1 U. S. C. §3 (emphasis added). “[T]ransportation” involves the “conveyance (of things or persons) from one place to another.” 18 Oxford English Dictionary 424 (2d ed. 1989) (OED). Accord, N. Webster, An American Dictionary of the English Language 1406 (C. Goodrich & N. Porter eds. 1873) (“[t]he act of transporting, carrying, or conveying from one place to another”). And we must apply this definition in a “practical,” not a “theoretical,” way. Stewart, supra, at 496. Consequently, in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.

B

Though our criterion is general, the facts of this case illustrate more specifically what we have in mind. But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering mechanism. 649 F. 3d, at 1269. Its hull was unraked, ibid., and it had a rectangular bottom 10 inches below the water. Brief for Petitioner 27; App. 37. It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connections with the land. Id., at 40. Its small rooms looked like ordinary nonmaritime living quarters. And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows. Id., at 44–66.

Although lack of self-propulsion is not dispositive, e.g., The Robert W. Parsons, 191 U. S. 17, 31 (1903) , it may be a relevant physical characteristic. And Lozman’s home differs significantly from an ordinary houseboat in that it has no ability to propel itself. Cf. 33 CFR §173.3 (2012) (“Houseboat means a motorized vessel . . . designed primarily for multi-purpose accommodation spaces with low freeboard and little or no foredeck or cockpit” (emphasis added)). Lozman’s home was able to travel over water only by being towed. Prior to its arrest, that home’s travel by tow over water took place on only four occasions over a period of seven years. Supra, at 2. And when the home was towed a significant distance in 2006, the towing company had a second boat follow behind to prevent the home from swinging dangerously from side to side. App. 104.

The home has no other feature that might suggest a design to transport over water anything other than its own furnishings and related personal effects. In a word, we can find nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for “transportation on water.”

C

Our view of the statute is consistent with its text, precedent, and relevant purposes. For one thing, the statute’s language, read naturally, lends itself to that interpretation. We concede that the statute uses the word “every,” referring to “every description of watercraft or other artificial contrivance.” 1 U. S. C. §3 (emphasis added). But the term “contrivance” refers to “something contrived for, or employed in contriving to effect a purpose.” 3 OED 850 (def. 7). The term “craft” explains that purpose as “water carriage and transport.” Id., at 1104 (def. V(9)(b)) (defining “craft” as a “vesse[l] . . . for” that purpose). The ad-dition of the word “water” to “craft,” yielding the term “watercraft,” emphasizes the point. And the next few words, “used, or capable of being used, as a means of transportation on water,” drive the point home.

For another thing, the bulk of precedent supports our conclusion. In Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U. S. 19 (1926) , the Court held that a wharfboat was not a “vessel.” The wharfboat floated next to a dock; it was used to transfer cargo from ship to dock and ship to ship; and it was connected to the dock with cables, utility lines, and a ramp. Id., at 21. At the same time, it was capable of being towed. And it was towed each winter to a harbor to avoid river ice. Id., at 20–21. The Court reasoned that, despite the annual movement under tow, the wharfboat “was not used to carry freight from one place to another,” nor did it “encounter perils of navigation to which craft used for transportation are exposed.” Id., at 22. (See Appendix, infra, for photograph of a period wharfboat).

The Court’s reasoning in Stewart also supports our conclusion. We there considered the application of the statutory definition to a dredge. 543 U. S., at 494. The dredge was “a massive floating platform” from which a suspended clamshell bucket would “remov[e] silt from the ocean floor,” depositing it “onto one of two scows” floating alongside the dredge. Id., at 484. Like more traditional “seagoing vessels,” the dredge had, e.g., “a captain and crew, navigational lights, ballast tanks, and a crew dining area.” Ibid. Unlike more ordinary vessels, it could navigate only by “manipulating its anchors and cables” or by being towed. Ibid. Nonetheless it did move. In fact it moved over water “every couple of hours.” Id., at 485.

We held that the dredge was a “vessel.” We wrote that §3’s definition “merely codified the meaning that the term ‘vessel’ had acquired in general maritime law.” Id., at 490. We added that the question of the “watercraft’s use ‘as a means of transportation on water’ is . . . practical,” and not “merely . . . theoretical.” Id., at 496. And we pointed to cases holding that dredges ordinarily “served a waterborne transportation function,” namely that “in performing their work they carried machinery, equipment, and crew over water.” Id., at 491–492 (citing, e.g., Butler v. Ellis, 45 F. 2d 951, 955 (CA4 1930)).

As the Court of Appeals pointed out, in Stewart we also wrote that §3 “does not require that a watercraft be used primarily for that [transportation] purpose,” 543 U. S., at 495; that a “watercraft need not be in motion to qualify as a vessel,” ibid.; and that a structure may qualify as a vessel even if attached—but not “permanently” attached—to the land or ocean floor. Id., at 493–494. We did not take these statements, however, as implying a universal set of sufficient conditions for application of the definition. Rather, they say, and they mean, that the statutory definition may (or may not) apply—not that it automatically must apply—where a structure has some other primary purpose, where it is stationary at relevant times, and where it is attached—but not permanently attached—to land.

After all, a washtub is normally not a “vessel” though it does not have water transportation as its primary purpose, it may be stationary much of the time, and it might be attached—but not permanently attached—to land. More to the point, water transportation was not the primary purpose of either Stewart’s dredge or Evansville’s wharfboat; neither structure was “in motion” at relevant times; and both were sometimes attached (though not permanently attached) to the ocean bottom or to land. Nonetheless Stewart’s dredge fell within the statute’s definition while Evansville’s wharfboat did not.

The basic difference, we believe, is that the dredge was regularly, but not primarily, used (and designed in part to be used) to transport workers and equipment over water while the wharfboat was not designed (to any practical degree) to serve a transportation function and did not do so. Compare Cope v. Vallette Dry Dock Co., 119 U. S. 625 (1887) (floating drydock not a “vessel” because permanently fixed to wharf), with Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 535 (1995) (barge sometimes attached to river bottom to use as a work platform remains a “vessel” when “at other times it was used for transportation”). See also ibid. (citing Great Lakes Dredge & Dock Co. v. Chicago, 3 F. 3d 225, 229 (CA7 1993) (“[A] craft is a ‘vessel’ if its purpose is to some reasonable degree ‘the transportation of passengers, cargo, or equipment from place to place across navigable waters’ ”)); Cope, supra, at 630 (describing “hopper-barge,” as potentially a “vessel” because it is a “navigable structure[,] used for the purpose of transportation”); cf. 1 Benedict on Admiralty §164, p. 10–6 (7th rev. ed. 2012) (maritime jurisdiction proper if “the craft is a navigable structure intended for maritime transportation”).

Lower court cases also tend, on balance, to support our conclusion. See, e.g., Bernard v. Binnings Constr. Co., 741 F. 2d 824, 828, n. 13, 832, n. 25 (CA5 1984) (work punt lacking features objectively indicating a transportation function not a “vessel,” for “our decisions make clear that the mere capacity to float or move across navigable waters does not necessarily make a structure a vessel”); Ruddiman v. A Scow Platform, 38 F. 158 (SDNY 1889) (scow, though “capable of being towed . . . though not without some difficulty, from its clumsy structure” just a floating box, not a “vessel,” because “it was not designed or used for the purpose of navigation,” not engaged “in the transportation of persons or cargo,” and had “no motive power, no rudder, no sails”). See also 1 T. Schoenbaum, Admiralty and Maritime Law §3–6, p. 155 (5th ed. 2011) (courts have found that “floating dry-dock[s],” “floating platforms, barges, or rafts used for construction or repair of piers, docks, bridges, pipelines and other” similar facilities are not “vessels”); E. Benedict, American Admiralty §215, p. 116 (3d rev. ed. 1898) (defining “vessel” as a “ ‘machine adapted to transportation over rivers, seas, and oceans’ ”).

We recognize that some lower court opinions can be read as endorsing the “anything that floats” approach. See Miami River Boat Yard, Inc. v. 60’ Houseboat, 390 F. 2d 596, 597 (CA5 1968) (so-called “houseboat” lacking self-propulsion); Sea Village Marina, LLC v. A 1980 Carlcraft Houseboat, No. 09–3292, 2009 WL 3379923, *5–*6 (D NJ, Oct. 19, 2009) (following Miami River Boat Yard); Hudson Harbor 79th Street Boat Basin, Inc. v. Sea Casa, 469 F. Supp. 987, 989 (SDNY 1979) (same). Cf. Holmes v. Atlantic Sounding Co., 437 F. 3d 441 (CA5 2006) (floating dormitory); Summerlin v. Massman Constr. Co., 199 F. 2d 715 (CA4 1952) (derrick anchored in the river engaged in building a bridge is a vessel). For the reasons we have stated, we find such an approach inappropriate and inconsistent with our precedents.

Further, our examination of the purposes of major federal maritime statutes reveals little reason to classify floating homes as “vessels.” Admiralty law, for example, provides special attachment procedures lest a vessel avoid liability by sailing away. 46 U. S. C. §§31341–31343 (2006 ed. and Supp. IV). Liability statutes such as the Jones Act recognize that sailors face the special “ ‘perils of the sea.’ ” Chandris, Inc. v. Latsis, 515 U. S. 347, 354, 373 (1995) (referring to “ ‘vessel[s] in navigation’ ”). Certain admiralty tort doctrines can encourage shipowners to engage in port-related commerce. E.g., 46 U. S. C. §30505; Executive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249 –270 (1972). And maritime safety statutes subject vessels to U. S. Coast Guard inspections. E.g., 46 U. S. C. §3301.

Lozman, however, cannot easily escape liability by sailing away in his home. He faces no special sea dangers. He does not significantly engage in port-related commerce. And the Solicitor General tells us that to adopt a version of the “anything that floats” test would place unnecessary and undesirable inspection burdens upon the Coast Guard. Brief for United States as Amicus Curiae 29, n. 11.

Finally, our conclusion is consistent with state laws in States where floating home owners have congregated in communities. See Brief for Seattle Floating Homes Association et al. as Amici Curiae 1. A Washington State environmental statute, for example, defines a floating home (for regulatory purposes) as “a single-family dwelling unit constructed on a float, that is moored, anchored, or otherwise secured in waters, and is not a vessel, even though it may be capable of being towed.” Wash. Rev. Code Ann. §90.58.270(5)(b)(ii) (Supp. 2012). A California statute defines a floating home (for tax purposes) as “a floating structure” that is “designed and built to be used, or is modified to be used, as a stationary waterborne residential dwelling,” and which (unlike a typical houseboat), has no independent power generation, and is dependent on shore utilities. Cal. Health & Safety Code Ann. §18075.55(d) (West 2006). These States, we are told, treat structures that meet their “floating home” definitions like ordinary land-based homes rather than like vessels. Brief for Seattle Floating Homes Association 2. Consistency of interpretation of related state and federal laws is a virtue in that it helps to create simplicity making the law easier to understand and to follow for lawyers and for nonlawyers alike. And that consideration here supports our conclusion.

D

The City and supporting amici make several important arguments that warrant our response. First, they argue against use of any purpose-based test lest we introduce into “vessel” determinations a subjective element—namely, the owner’s intent. That element, they say, is often “unverifiable” and too easily manipulated. Its introduction would “foment unpredictability and invite gamesmanship.” Brief for Respondent 33.

We agree with the City about the need to eliminate the consideration of evidence of subjective intent. But we cannot agree that the need requires abandonment of all criteria based on “purpose.” Cf. Stewart, 543 U. S., at 495 (discussing transportation purpose). Indeed, it is difficult, if not impossible, to determine the use of a human “contrivance” without some consideration of human purposes. At the same time, we have sought to avoid subjective elements, such as owner’s intent, by permitting consideration only of objective evidence of a waterborne transportation purpose. That is why we have referred to the views of a reasonable observer. Supra, at 1. And it is why we have looked to the physical attributes and behavior of the structure, as objective manifestations of any relevant purpose, and not to the subjective intent of the owner. Supra, at 5–6. We note that various admiralty treatises refer to the use of purpose-based tests without any suggestion that administration of those tests has introduced too much subjectivity into the vessel-determination process. 1 Benedict on Admiralty §164; 1 Admiralty and Maritime Law §3–6.

Second, the City, with support of amici, argues against the use of criteria that are too abstract, complex, or open-ended. Brief for Respondent 28–29. A court’s jurisdiction, e.g., admiralty jurisdiction, may turn on application of the term “vessel.” And jurisdictional tests, often applied at the outset of a case, should be “as simple as possible.” Hertz Corp. v. Friend, 559 U. S. ___, ___ (2010) (slip op., at 1).

We agree with the last-mentioned sentiment. And we also understand that our approach is neither perfectly pre-cise nor always determinative. Satisfaction of a design-based or purpose-related criterion, for example, is not always sufficient for application of the statutory word “vessel.” A craft whose physical characteristics and activities objectively evidence a waterborne transportation purpose or function may still be rendered a nonvessel by later physical alterations. For example, an owner might take a structure that is otherwise a vessel (even the Queen Mary) and connect it permanently to the land for use, say, as a hotel. See Stewart, supra, at 493–494. Further, changes over time may produce a new form, i.e., a newly designed structure—in which case it may be the new de-sign that is relevant. See Kathriner v. Unisea, Inc., 975 F. 2d 657, 660 (CA9 1992) (floating processing plant was no longer a vessel where a “large opening [had been] cut into her hull”).

Nor is satisfaction of the criterion always a necessary condition, see Part IV, infra. It is conceivable that an owner might actually use a floating structure not designed to any practical degree for transportation as, say, a ferry boat, regularly transporting goods and persons over water.

Nonetheless, we believe the criterion we have used, taken together with our example of its application here, should offer guidance in a significant number of borderline cases where “capacity” to transport over water is in doubt. Moreover, borderline cases will always exist; they require a method for resolution; we believe the method we have used is workable; and, unlike, say, an “anything that floats” test, it is consistent with statutory text, purpose, and precedent. Nor do we believe that the dissent’s approach would prove any more workable. For example, the dissent suggests a relevant distinction between an owner’s “clothes and personal effects” and “large appliances (like an oven or a refrigerator).” Post, at 8 (opinion of Sotomayor, J.). But a transportation function need not turn on the size of the items in question, and we believe the line between items being transported from place to place (e.g., cargo) and items that are mere appurtenances is the one more likely to be relevant. Cf. Benedict, American Admiralty §222, at 121 (“A ship is usually described as consisting of the ship, her tackle, apparel, and furniture . . .”).

Finally, the dissent and the Solicitor General (as amicus for Lozman) argue that a remand is warranted for further factfinding. See post, at 10–12; Brief for United States as Amicus Curiae 29–31. But neither the City nor Lozman makes such a request. Brief for Respondent 18, 49, 52. And the only potentially relevant factual dispute the dissent points to is that the home suffered serious damage during a tow. Post, at 10–11. But this would add support to our ultimate conclusion that this floating home was not a vessel. We consequently see nothing to be gained by a remand.

IV

Although we have focused on the phrase “capable of being used” for transportation over water, the statute also includes as a “vessel” a structure that is actually “used” for that transportation. 1 U. S. C. §3 (emphasis added). And the City argues that, irrespective of its design, Lozman’s floating home was actually so used. Brief for Respondent 32. We are not persuaded by its argument.

We are willing to assume for argument’s sake that sometimes it is possible actually to use for water transportation a structure that is in no practical way designed for that purpose. See supra, at 12–13. But even so, the City cannot show the actual use for which it argues. Lozman’s floating home moved only under tow. Before its arrest, it moved significant distances only twice in seven years. And when it moved, it carried, not passengers or cargo, but at the very most (giving the benefit of any factual ambiguity to the City) only its own furnishings, its owner’s personal effects, and personnel present to assure the home’s safety. 649 F. 3d, at 1268; Brief for Respondent 32; Tr. of Oral Arg. 37–38. This is far too little actual “use” to bring the floating home within the terms of the statute. See Evansville, 271 U. S., at 20–21 (wharfboat not a “vessel” even though “[e]ach winter” it “was towed to [a] harbor to protect it from ice”); see also Roper v. United States, 368 U. S. 20, 23 (1961) (“Unlike a barge, the S. S. Harry Lane was not moved in order to transport commodities from one location to another”). See also supra, at 6–11.

V

For these reasons, the judgment of the Court of Appeals is reversed.

It is so ordered.

APPENDIX

Petitioner’s floating home. App. 69.

50by 200-foot wharf boat in Evansville, Indiana, on Nov. 13, 1918. H. R. Doc. No. 1521, 65th Cong., 3d Sess., Illustration No. 13 (1918).

SUPREME COURT OF THE UNITED STATES

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No. 11–626

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FANE LOZMAN, PETITIONER v. THE CITY OF RIVIERA BEACH, FLORIDA

on writ of certiorari to the united states court of appeals for the eleventh circuit

[January 15, 2013]

Justice Sotomayor, with whom Justice Kennedy joins, dissenting.

I agree with much of the Court’s reasoning. Our precedents fully support the Court’s reasoning that the Eleventh Circuit’s test is overinclusive; that the subjective intentions of a watercraft’s owner or designer play no role in the vessel analysis of 1 U. S. C. §3; and that an objective assessment of a watercraft’s purpose or function governs whether that structure is a vessel. The Court, however, creates a novel and unnecessary “reasonable observer” reformulation of these principles and errs in its determination, under this new standard, that the craft before us is not a vessel. Given the underdeveloped record below, we should remand. Therefore, I respectfully dissent.

I

The relevant statute, 1 U. S. C. §3, “sweeps broadly.” Stewart v. Dutra Constr. Co., 543 U. S. 481, 494 (2005) . It provides that “[t]he word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” This broad phrasing flows from admiralty law’s long recognition that vessels come in many shapes and sizes. See E. Benedict, American Admiralty §218, p. 121 (1870 ed.) (“[V]essel, is a general word, many times used for any kind of navigation”); M. Cohen, Admiralty Jurisdiction, Law, and Practice 232 (1883) (“[T]he term ‘vessel’ shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river . . . ”).

Our test for vessel status has remained the same for decades: “Under §3, a ‘vessel’ is any watercraft practically capable of maritime transportation . . . .” Stewart, 543 U. S., at 497; see also Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U. S. 19, 22 (1926) ; Cope v. Vallette Dry Dock Co., 119 U. S. 625, 627 (1887) . At its core, vessel status has always rested upon the objective physical characteristics of a vessel (such as its structure, shape, and materials of construction), as well as its usage history. But over time, several important principles have guided both this Court and the lower courts in determining what kinds of watercraft fall properly within the scope of admiralty jurisdiction.

Consider the most basic of requirements. For a watercraft to be “practically capable” of maritime transportation, it must first be “capable” of such transportation. Only those structures that can simultaneously float and carry people or things over water are even presumptively within §3’s reach. Stopping here, as the Eleventh Circuit essentially did, results in an overinclusive test. Section 3, after all, does not drag every bit of floating and towable flotsam and jetsam into admiralty jurisdiction. Rather, the terms “capable of being used” and “practical” have real significance in our maritime jurisprudence.

“[A] water craft is not ‘capable of being used’ for maritime transport in any meaningful sense if it has been permanently moored.” Stewart, 543 U. S., at 494. So, to take an obvious example, a floating bridge over water does not constitute a vessel; such mooring is clearly permanent. Cf. The Rock Island Bridge, 6 Wall. 213, 216 (1867). Less dramatically, a watercraft whose objective physical connections to land “evidence a permanent location” does not fall within §3’s ambit. See, e.g., Evansville, 271 U. S., at 22 (“[The wharfboat] served at Evansville as an office, warehouse and wharf, and was not taken from place to place. The connections with the water, electric light and telephone systems of the city evidence a permanent location”); Dunklin v. Louisiana Riverboat Gaming Partnership, No. 00–31455, 2001 WL 650209, *1, n. 1 (CA5, May 22, 2001) (per curiam) (describing a fully functional casino boat placed “in an enclosed pond in a cofferdam”). Put plainly, structures “permanently affixed to shore or resting on the ocean floor,” Stewart, 543 U. S., at 493–494, have never been treated as vessels for the purposes of §3.

Our precedents have also excluded from vessel status those watercraft “rendered practically incapable of transportation or movement.” Id., at 494. Take the easiest case, a vessel whose physical characteristics have been so altered as to make waterborne transportation a practical impossibility. Ibid. (explaining that a “floating processing plant was no longer a vessel where a ‘large opening [had been] cut into her hull,’ rendering her incapable of moving over the water” (quoting Kathriner v. UNISEA, Inc., 975 F. 2d 657, 660 (CA9 1992)). The longstanding admiralty exception for “dead ships,” those watercraft that “require a major overhaul” for their “reactivation,” also falls into this category. See Roper v. United States, 368 U. S. 20, 21 (1961) (finding that a liberty ship “deactivated from service and ‘mothballed’ ” is not a “vessel in navigation”); see generally Rutherglen, Dead Ships, 30 J. Maritime L. & Comm. 677 (1999). 1 Likewise, ships that “have been withdrawn from the water for extended periods of time” in order to facilitate repairs and reconstruction may lose their status as vessels until they are rendered capable of maritime transport. Stewart, 543 U. S., at 496. Cf. West v. United States, 361 U. S. 118, 120, 122 (1959) (noting that “the Mary Austin was withdrawn from any operation whatever while in storage with the ‘moth-ball fleet’ ” and that “[t]he Mary Austin, as anyone could see, was not in maritime service. She was undergoing major repairs and complete renovation . . . ”).

Finally, our maritime jurisprudence excludes from vessel status those floating structures that, based on their physical characteristics, do not “transport people, freight, or cargo from place to place” as one of their purposes. Stewart, 543 U. S., at 493. “Purpose,” in this context, is determined solely by an objective inquiry into a craft’s function. “[N]either size, form, equipment nor means of propulsion are determinative factors upon the question of [vessel status],” though all may be considered. The Robert W. Parsons, 191 U. S. 17, 30 (1903) . Moreover, in assessing a particular structure’s function, we have consistently examined its past and present activities. Stewart, 543 U. S., at 495; Cope, 119 U. S., at 627. Of course, a seaborne craft is not excluded from vessel status simply because its “primary purpose” is not maritime transport. Stewart, 543 U. S., at 497. We held as much in Stewart when we concluded that a dredge was a vessel notwithstanding that its “primary purpose” was “dredging rather than transportation.” Id., at 486, 495. So long as one purpose of a craft is transportation, whether of cargo or people or both, §3’s practical capability requirement is satisfied.

Certainly, difficult and marginal cases will arise. Fortunately, courts do not consider each floating structure anew. So, for example, when we were confronted in Stewart with the question whether a dredge is a §3 vessel, we did not commence with a clean slate; we instead sought guidance from previous cases that had confronted similar structures. See id., at 490, and n. 5; see also Norton v. Warner Co., 321 U. S. 565 –572 (1944) (likewise surveying earlier cases).

In sum, our precedents offer substantial guidance for how objectively to determine whether a watercraft is practically capable of maritime transport and thus qualifies as a §3 vessel. First, the capacity to float and carry things or people is an obvious prerequisite to vessel status. Second, structures or ships that are permanently moored or fixed in place are not §3 vessels. Likewise, structures that are practically incapable of maritime transport are not vessels, whether they are ships that have been altered so that they may no longer be put to sea, dead ships, or ships removed from navigation for extended periods of time. Third, those watercraft whose physical characteristics and usage history reveal no maritime transport purpose or use are not §3 vessels.

II

The majority does not appear to disavow the legal principles described above. The majority apparently accepts that permanent mooring suffices to take a ship out of vessel status, ante, at 8, 12, 2 and that “[a] craft whose physical characteristics and activities objectively evidence a waterborne transportation purpose or function may still be rendered a nonvessel by later physical alterations,” ante, at 12–13. 3 No one argues that Lozman’s craft was permanently moored, see App. 32 (describing the “deteriorated” ropes holding the craft in place), or that it had undergone physical alterations sufficient to take it out of vessel status, see Tr. of Oral Arg. 13 (Lozman’s counsel arguing that the craft was never a vessel in the first place). Our precedents make clear that the Eleventh Circuit’s “anything that floats” test is overinclusive and ignores that purpose is a crucial factor in determining whether a particular craft is or is not a vessel. Accordingly, the majority is correct that determining whether Lozman’s craft is a vessel hinges on whether that craft had any maritime transportation purpose or function.

The majority errs, though, in concluding that the purpose component of the §3 test is whether “a reasonable observer, looking to the [craft]’s physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water.” Ante, at 1. This phrasing has never appeared in any of our cases and the majority’s use of it, despite its seemingly objective gloss, effectively (and erroneously) introduces a subjective component into the vessel-status inquiry.

For one thing, in applying this test the majority points to some characteristics of Lozman’s craft that have no relationship to maritime transport, such as the style of the craft’s rooms or that “those inside those rooms looked out upon the world, not through water-tight portholes, but through French doors or ordinary windows.” Ante, at 5. The majority never explains why it believes these particular esthetic elements are important for determining vessel status. In fact, they are not. Section 3 is focused on whether a structure is “used, or capable of being used, as a means of transportation on water.” By importing windows, doors, room style, and other esthetic criteria into the §3 analysis, the majority gives our vessel test an “I know it when I see it” flavor. Jacobellis v. Ohio, 378 U. S. 184, 197 (1964) (Stewart, J., concurring). But that has never been nor should it be the test: A badly designed and unattractive vessel is different from a structure that lacks any “practical capacity” for maritime transport. In the majority’s eyes, the two appear to be one and the same.

The majority’s treatment of the craft’s past voyages is also strange. The majority notes that Lozman’s craft could be and was, in fact, towed over long distances, including over 200 miles at one point. Ante, at 2–6. But the majority determines that, given the design of Lozman’s craft, this is “far too little actual ‘use’ to bring the floating home within the terms of the statute.” Ante, at 14. This is because “when it moved, it carried, not passengers or cargo, but at the very most (giving the benefit of any factual ambiguity to the City) only its own furnishings, its owner’s personal effects, and personnel present to assure the home’s safety.” Ante, at 13–14.

I find this analysis confusing. The majority accepts that the record indicates that Lozman’s craft traveled hundreds of miles while “carrying people or things.” Ante, at 1. But then, in the same breath, the majority concludes that a “reasonable observer” would nonetheless conclude that the craft was not “designed to any practical degree for carrying people or things on water.” Ibid. The majority fails to explain how a craft that apparently did carry people and things over water for long distances was not “practically capable” of maritime transport.

This is not to say that a structure capable of such feats is necessarily a vessel. A craft like Lozman’s might not be a vessel, for example, if it could only carry its owner’s clothes and personal effects, or if it is only capable of transporting itself and its appurtenances. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 535 (1995) (“[M]aritime law . . . ordinarily treats an ‘appurtenance’ attached to a vessel in navigable waters as part of the vessel itself”). But if such a craft can carry large appliances (like an oven or a refrigerator) and all of the other things we might find in a normal home in addition to the occupants of that home, as the existing record suggests Lozman’s craft may have done, then it would seem to be much more like a mobile home (and therefore a vessel) than a firmly rooted residence. The simple truth is that we know very little about the craft’s capabilities and what did or did not happen on its various trips. By focusing on the little we do know for certain about this craft (i.e., its windows, doors, and the style of its rooms) in determining whether it is a vessel, the majority renders the §3 inquiry opaque and unpredictable.

Indeed, the little we do know about Lozman’s craft suggests only that it was an unusual structure. A surveyor was unable to find any comparable craft for sale in the State of Florida. App. 43. Lozman’s home was neither obviously a houseboat, as the majority describes such ships, ante, at 5–6, nor clearly a floating home, ante, at 10–11. See App. 13, 31, 79 (sale, lease, and surveying documents describing Lozman’s craft as a “houseboat”). The only clear difference that the majority identifies between these two kinds of structures is that the former are self-propelled, while the latter are not. Ante, at 5–6. But even the majority recognizes that self-propulsion has never been a prerequisite for vessel status. Ante, at 5 (citing The Robert W. Parsons, 191 U. S., at 31); see Norton, 321 U. S., at 571. Consequently, it is unclear why Lozman’s craft is a floating home, why all floating homes are not vessels, 4 or why Lozman’s craft is not a vessel. If windows, doors, and other esthetic attributes are what take Lozman’s craft out of vessel status, then the majority’s test is completely malleable. If it is the craft’s lack of self-propulsion, then the majority’s test is unfaithful to our longstanding precedents. See The Robert W. Parsons, 191 U. S., at 30–31. If it is something else, then that something is not apparent from the majority’s opinion.

Worse still, in straining to find that Lozman’s craft was a floating home and therefore not a vessel, the majority calls into question the conclusions of numerous lower courts that have found houseboats that lacked self-propulsion to be §3 vessels. See ante, at 9–10 (citing Miami River Boat Yard, Inc. v. 60’ Houseboat, 390 F. 2d 596, 597 (CA5 1968); Sea Village Marina, LLC v. A 1980 Carlcraft Houseboat, No. 09–3292, 2009 WL 3379923, *5–*6 (D NJ, Oct. 19, 2009); Hudson Harbor 79th Street Boat Basin, Inc. v. Sea Casa, 469 F. Supp. 987, 989 (SDNY 1979)). The majority incorrectly suggests that these cases applied an “ ‘anything that floats’ ” test. Ante, at 9. These cases suggest something different. Many of these decisions in assessing the crafts before them looked carefully at these crafts’ structure and function, and determined that these ships had capabilities similar to other long-established vessels, suggesting a significant maritime transportation function. See Miami River Boat Yard, 390 F. 2d, at 597 (likening houseboat at issue to a “barg[e]”); Sea Village Marina, 2009 WL 3379923, *7 (“According to the available evidence, [the houseboats in question] float and can be towed to a new marina without substantial effort . . . ”); Hudson Harbor, 469 F. Supp., at 989 (houseboat “was capable of being used at least to the extent that a ‘dumb barge’ is capable of being used” and comparable to a “yach[t]”). Their holdings are consistent with older cases, see, e.g., The Ark, 17 F. 2d 446, 447 (SD Fla. 1926), and the crafts at issue in these cases have been widely accepted as vessels by most treatises in this area, see 1 S. Friedell, Benedict on Admiralty §164, p. 10–6, n. 2 (7th ed. rev. 2012); 1 T. Schoenbaum, Admiralty & Maritime Law §3–6, p. 153, n. 10 (5th ed. 2011); 1 R. Force & M. Norris, The Law of Seamen §2:12, p. 2–82 (5th ed. 2003). The majority’s suggestion that rejecting the Eleventh Circuit’s test necessitates jettisoning these other precedents is simply wrong. And, in its rejection, the majority works real damage to what has long been a settled area of maritime law. 5

III

With a more developed record, Lozman’s craft might be distinguished from the houseboats in those lower court cases just discussed. For example, if Lozman’s craft’s previous voyages caused it serious damage, then that would strongly suggest that it lacked a maritime transportation purpose or function. There is no harm in remanding the case for further factfinding along the lines described above, cautioning the lower courts to be aware that features of Lozman’s “incomparable” craft, see App. 43, may distinguish it from previous precedents. At most, such a remand would introduce a relatively short delay before finally ending the years-long battle between Lozman and the city of Riviera Beach.

On the other hand, there is great harm in stretching the facts below and overriding settled and likely correct lower court precedents to reach the unnecessary conclusion that Lozman’s craft was not a vessel. Without an objective application of the §3 standard, one that relies in a predictable fashion only on those physical characteristics of a craft that are related to maritime transport and use, parties will have no ex ante notion whether a particular ship is a vessel. As a wide range of amici have cautioned us, numerous maritime industries rely heavily on clear and predictable legal rules for determining which ships are vessels. 6 The majority’s distorted application of our settled law to the facts of this case frustrates these ends. Moreover, the majority’s decision reaches well beyond relatively insignificant boats like Lozman’s craft, id., at 79 (listing purchase price of Lozman’s craft as $17,000), because it specifically disapproves of lower court decisions dealing with much larger ships, see ante, at 10 (questioning Holmes v. Atlantic Sounding Co., 437 F. 3d 441 (CA5 2006) (finding a 140-foot-long and 40-foot-wide dormitory barge with 50 beds to be a §3 vessel)).

IV

It is not clear that Lozman’s craft is a §3 vessel. It is clear, however, that we are not in a good position to make such a determination based on the limited record we possess. The appropriate response is to remand the case for further proceedings in light of the proper legal standard. See Brief for United States as Amicus Curiae 29–31. The Court resists this move and in its haste to christen Lozman’s craft a nonvessel delivers an analysis that will confuse the lower courts and upset our longstanding admiralty precedent. I respectfully dissent.

__________________________________

1  The converse category of ships “not yet born” is another historical exclusion from vessel status. See Tucker v. Alexandroff, 183 U. S. 424, 438 (1902) (“A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron—an ordinary piece of personal property—as distinctly a land structure as a house, and subject only to mechanics’ liens created by state law and enforceable in the state courts”).

2  In discussing permanent mooring, as well as Stewart’s rejection of primary-purpose and state-of-transit tests for vessel status, Stewart v. Dutra Constr. Co., 543 U. S. 481, 495 (2005) , the majority states that our holdings “say, and they mean, that the statutory definition [given by §3] may (or may not) apply—not that it automatically must apply—where a structure has some other primary purpose, where it is stationary at relevant times, and where it is attached—but not permanently attached—to land.” Ante, at 8. This must mean, by negative impli-cation, that a permanently moored structure never falls within §3’s definition.

3  Presumably, this encompasses those kinds of ships “otherwise rendered practically incapable of transportation or movement.” Stewart, 543 U. S., at 494. That is, ships which have been altered so they cannot travel the seas, dead ships, and ships removed from the water for an extended period of time. Supra, at 3–4.

4  To be clear, some floating homes are obviously not vessels. For example, some floating homes are structures built upon a large inverted pyramid of logs. Brief for Seattle Floating Homes Assn. et al. as Amici Curiae 14. Cf. App. 38 (Lozman’s craft was buoyed by an empty bilge space). These kinds of floating homes can measure 4,000 or 5,000 square feet, see Brief for Seattle Floating Homes Assn. et al. as Amici Curiae 4, and may have connections to land that require the aid of divers and electricians to remove, ibid. These large, immobile structures are not vessels and have physical attributes directly connected to their lack of navigational abilities that suggest as much. But these structures are not before us; Lozman’s craft is.

5  The majority’s invocation of two state environmental and tax statutes as a reason to reject this well-established lower court precedentis particularly misguided. See ante, at 10–11. We have repeatedly emphasized that the “regulation of maritime vessels” is a “uniquely federal are[a] of regulation.” Chamber of Commerce of United Statesof America v. Whiting, 563 U. S. __, __ (2011) (plurality opinion) (slip op., at 19) (emphasis added); see also United States v. Locke, 529 U. S. 89, 99 (2000) (explaining that “the federal interest [in regulating interstate navigation] has been manifest since the beginning of our Republic and is now well established”). Our previous cases did not turn to state law in determining whether a given craft is a vessel. There are no good reasons to do so now.

6  For example, without knowing whether a particular ship is a §3 vessel, it is impossible for lenders to know how properly to characterize it as collateral for a financing agreement because they do not know what remedies they will have recourse to in the event of a default. Brief for National Marine Bankers Assn. as Amicus Curiae 14–15. Similarly, cities like Riviera Beach provide docking for crafts like Lozman’s on the assumption that such crafts actually are “vessels,” App. 13–21 (Riviera Beach’s wet-slip agreement referring to Lozman’s craft as a “vessel,” “boat,” or “houseboat”), that can be “remove[d]” upon short notice, id., at 17 (requiring removal of the craft on three days’ notice). The majority makes it impossible for these marinas to know whether the “houseboats” that fill their slips are actually vessels and what remedies they can exercise in the event of a dispute. See id., at 15 (“In addition to any other remedies provided for in this Agreement, the Marina, as a provider of necessities to this vessel, has a maritime lien on the vessel and may bring a civil action in rem under 46 United States Code 31342 in Federal Court, to arrest the vessel and enforcethe lien . . . ” (emphasis added)). Lozman’s behavior over the years is emblematic of this problem. For example, in 2003, prior to his move to Riviera Beach, Lozman had his craft towed from one marina to another after a dispute arose with the first marina and he was threatened with eviction. App. 76–78. The possibility that a shipowner like Lozman can depart so easily over water and go beyond the reach of a provider of necessaries like the marina in response to a legal dispute is exactly the kind of problem that the Federal Maritime Lien Act, 46 U. S. C. §31342, was intended to address. See Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co. of Cal., 310 U. S. 268 –273 (1940).

Print this transcript Transcript: 

ORAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next in Case 11-626, Lozman v. The City of Riviera Beach.

Mr. Fisher.

Jeffrey L. Fisher: Mr. Chief Justice, and may it please the Court:

To be a vessel, a structure must be practically capable of maritime transportation, and this case turns on how to assess such practical capability.

And that's a question this Court answered over a century ago in Cope and Perry, explaining that practical capability depends not on any physical attribute the structure might have, but rather, on “ its purpose ”, that is, whether its function is to move people or things across water.

And that test has been applied numerous times before and since, across decades, providing stability and overall coherence to general maritime law.

And of course--

Justice Antonin Scalia: You should have phrased the test that way then, because it really--

Jeffrey L. Fisher: --Pardon?

Justice Antonin Scalia: --That doesn't seem to me a very felicitous description of what -- of what the test is -- is enunciated to be.

Jeffrey L. Fisher: Well, I think--

Justice Antonin Scalia: The test is whether it's, what, practically able?

Jeffrey L. Fisher: --Practically capable.

Justice Antonin Scalia: Practically capable.

Well, you could be practically capable of doing something, even though the purpose of -- of setting the thing up has nothing to do with that.

Jeffrey L. Fisher: Well, that's not what this Court -- case is saying--

Justice Antonin Scalia: I understand.

I'm just saying we ought to get a different test, and let's -- let's get rid of this.

If we agree with you, let's get rid of this practically capable test, because practically capable, frankly, would make us come out the other way in this case.

Jeffrey L. Fisher: --With all due respect, I don't think that's correct.

In Evansville in 1926, this Court used that exact phrase, practical capability.

And it assessed that practical capability by looking at “ the function of the structure ”.

Again and again, in Evansville and other cases, this Court asked, was the function of the structure to carry people or things across water.

Chief Justice John G. Roberts: Well, that just has -- I understand that argument.

It's got no connection whatever to the statutory language, right?

Jeffrey L. Fisher: Well, I think the word capable obviously is in the statute.

And what this Court said as recently as Stewart is that capable--

Chief Justice John G. Roberts: Capable is in the statute, purpose is not, right?

Jeffrey L. Fisher: --Correct.

And what this Court said in Stewart is that capable means practically capable, not theoretically capable.

There's a range of how broad the word capable can be.

And again, going back over a century, every single time this Court's been confronted with that question, it's used the term function to describe whether or not something is practically capable of carrying people or things over water.

Justice Ruth Bader Ginsburg: You -- you describe cases with this purpose -- or function, but the briefs cited the district court decision, Sea Village Marina, that says floating homes like the one here that can be towed and are not in the business of carrying people or goods, but can be towed miles across the water, that those constitute vessels.

And this district court decision, Sea Village Marina, cited many, many cases.

And you say that that district judge got it wrong, or the cases were wrong?

Jeffrey L. Fisher: Justice Ginsburg, I think there's a confusion of terminology that I hope I can -- that I hope I can straighten out at the outset.

The term floating home is generally described to mean a residence that is designed to sit still and is not designed to carry people or things over water.

The term houseboat is something that is self-propelled, generally moves people or things over water.

What happened in the Sea Village Marina case, to my understanding, is the Court simply used the wrong term.

It cited a lot of cases that held that houseboats, as we describe a houseboat as something that is designed to move its owner and the owner's things from here to there, are vessels.

And we don't dispute that.

But on the other hand, you have something called floating homes, which the brief filed by the Seattle and Sausalito floating homes associations give a very thorough description of what a floating home is and how it's different.

And a primary way that it's different is that, as opposed to a houseboat, which is doing its function, it's doing its job when it's moving things from place to place, a floating home can't function when it's out in the water being towed.

None of the utilities work, none of the power, no equipment is aboard to do anything--

Justice Anthony Kennedy: Well, but in -- in your brief, I really lost count, but I think it's six times on the first two pages, you talk about indefinitely moored.

Now, the facts are in dispute, and we're not quite clear of the facts, but let's assume that this magnificent structure is -- which was mercifully destroyed -- let's assume that it was attached to the dock by a rope, a garden hose and an extension cord, and that it could leave within 30 minutes notice.

Is that indefinitely moored?

And if the answer is yes, is that because of subjective intent of the owner?

Jeffrey L. Fisher: --Justice Kennedy, it would be indefinitely moored.

That's the term this Court used in Stewart to describe whether something was being used to transport people or goods.

It had said -- I have to emphasize that some of the assumptions we do in fact dispute in your hypothetical.

But the fact that it sat still for three years performing its function as a stationary residence shows that it was indefinitely moored.

The importance of indefinite mooring, though, I want to emphasize, is actually less important in this case than it might be if this were a dead ship case, where you had something that was concededly a vessel--

Justice Anthony Kennedy: But suppose--

Jeffrey L. Fisher: --then the question--

Justice Anthony Kennedy: --you know the law school game, suppose it was moved every month.

Jeffrey L. Fisher: --It would still not be a vessel.

And you don't have to look any further than this Court's Evansville case.

Justice Anthony Kennedy: That would be indefinitely moored, in your view?

Jeffrey L. Fisher: Well, I'm not sure if you'd use the term indefinitely moored at that point, but it certainly wouldn't be transformed into a vessel because look at this Court's Evansville case.

The structure--

Chief Justice John G. Roberts: Before you get to Evansville, let's say it moved around, which is one thing, but also it had a raked bow; it wasn't square.

Then -- then it starts to look more like a boat.

It moves around more frequently.

Its mooring -- I mean, if you have a sailboat and you pull it up to a dock, you hook up for water and plug in for power.

It doesn't seem to me to be terribly significant.

Jeffrey L. Fisher: --I think that's right if you start with something that is a vessel; the fact that you simply leave it at the dock for a long time doesn't take away vessel status.

That's what this Court held in Stewart.

But if you start with something that isn't a vessel -- and I give you the Roper case, which did have a raked bow; it was an old Liberty ship that had everybody agreed had been decommissioned and turned into a non-vessel.

Then, they brought it in, they towed it -- Justice Ginsburg, they towed it -- they loaded it up with grain.

Towed it again, let it sit still for a couple years, towed it back, unloaded the grain.

And the Court said, it's not a vessel.

And why did this Court say it's not a vessel?

And I will quote from the opinion.

It said:

"Because unlike a barge, the Harry Lane was not moved in order to transport commodities from one place to another; it served as a mobile warehouse performing its function of storing grain. "

Justice Sonia Sotomayor: Counselor, can I -- can I -- I have been lost even as I have read the briefs, because there's a lot of terminology that I'm not sure -- and standards that have been proposed that -- what concepts they're tied to, okay?

As I see our cases, I am -- I'm not quite sure where indefinitely moored came from.

I've seen the word permanently moored.

You seem to be suggesting a difference between the two things, and I'm not sure where you get the latter, indefinitely moored, from, and how that ties to the concept of purpose.

Does it -- does the permanent status or indefinite mooring of a vessel not make it -- of a structure not make it a vessel, and/or does purpose get layered on top of mooring?

Jeffrey L. Fisher: No.

Purpose is the overall question.

The way that--

Justice Sonia Sotomayor: But it applies to whether something is permanently moored or floating on the sea?

Jeffrey L. Fisher: --That helps you determine its purpose.

So the word -- where the word indefinite comes from, Justice Sotomayor, is from the Stewart case, where this Court cited the Fifth Circuit's Pavone case with approval, which had held that an indefinitely moored floating casino was not a vessel.

Justice Samuel Alito: I just don't see how you can get purpose into this statutory language.

It says nothing about purpose.

It says, capable of being used as a means of transportation on water.

How does purpose get in there?

Whose purpose are we talking about?

Jeffrey L. Fisher: We're talking about an objective purpose, Justice Alito--

Justice Elena Kagan: Well, then you're not talking about purpose; you're talking about function, right?

You're just using purpose as a kind of strange synonym for function.

But you're not talking about purpose of either the homeowner or the manufacturer of the boat.

You're just saying what does this -- or what does this thing, this floating home, do.

Jeffrey L. Fisher: --Exactly.

And I'm doing -- if I can just say this directly, I'm trying to do exactly what this Court did in Cope and Evansville and Roper.

The exact analysis this Court applied in those cases is precisely what we want this Court to apply here.

But I think what we're--

Justice Antonin Scalia: Can I ask about that definition?

That definition comes from the Rules of Construction Act, right--

Jeffrey L. Fisher: --Yes.

Justice Antonin Scalia: --which provides the meaning of all -- of the word vessel as used in the United States Code.

Okay?

Jeffrey L. Fisher: Correct.

Justice Antonin Scalia: What -- what meaning of vessel in the United States Code is at issue here?

Jeffrey L. Fisher: The word vessel in the Maritime Lien Act, which is what provides the Federal forum, assertedly, for the plaintiff, the City, to bring this case.

So the word vessel is its jurisdictional and substantive hook.

Justice Sotomayor, if I can return to your question about indefinite mooring, the importance of indefinite mooring in this case, where you have something that was not a vessel to begin with, is simply to ask whether it's been transformed into a vessel, exactly as this Court asked in Roper.

So is it being used for its function for which it was created and--

Chief Justice John G. Roberts: Aren't you just begging the question?

You keep saying it was not a vessel to begin with.

Why -- doesn't it just restate the question?

Jeffrey L. Fisher: --I'm not trying to beg the question; I'm just trying to describe our argument to you.

There are some cases where--

Chief Justice John G. Roberts: Well, doesn't your argument beg the question?

Jeffrey L. Fisher: --I hope not.

I'm trying to distinguish between two lines of cases, one being where you have things that were -- like the Roper case, that were made as boats, as vessels undisputedly, and now the question is whether they have been pulled out of navigation; as opposed to another set of cases, which we believe this falls into, where the question itself is whether this was ever a vessel.

In those kinds of cases, the indefinite mooring shows that it's being used for its function.

As a for-example, if I could give a hypothetical, maybe it would help, imagine a piece of floating dock.

Now, under their test, that would be a vessel because you can unhook the dock, load it up with stuff and tow it around, if a company wanted to use that as a makeshift barge.

But no maritime case has ever held that a floating dock is a vessel.

But if somebody did that, then it would no longer be indefinitely moored and would be used in a different function and might be transformed into a--

Justice Samuel Alito: I think you may -- you may very well have a good argument, but if you're relying either on purpose or on indefinite mooring, then you've lost me.

I don't see how they get -- how you get those into the words of the statute.

Suppose you have a boat, and it's tied up at the harbor here in Washington.

It hasn't been moved for five years.

It's indefinitely moved -- or 10 years or 20 years.

But if it's capable, if you could untie it and sail it out into the river, doesn't it fall within the definition?

Jeffrey L. Fisher: --It absolutely does because the function of a boat is to move people or things over water.

So when it's sitting still, Justice Alito, it's not performing its function.

Justice Elena Kagan: Right.

So you are really talking about a function test.

And you are using strange words, because they come out of our opinions -- kind of not your fault.

But you're really saying that what should apply here is a function test.

We are looking at this floating home.

What does it do?

Is it just a thing that sits, or is it a thing that transports things over water.

Isn't that your test?

Jeffrey L. Fisher: Yes, it is.

Chief Justice John G. Roberts: So it changes -- one -- the same thing is not a boat sometimes, and it is a boat.

You've got a casino that's tied up for a month.

During that time, it's not a boat.

And then they move it around to go to the other side of the river, and during that time it is a boat?

Jeffrey L. Fisher: No, this Court in Stewart rejected the snapshot test that I think is what you just described.

The question is whether what -- whether it has the function of moving people and things over water or not.

Now, some casinos go up and down the river--

Chief Justice John G. Roberts: But -- but I'm just -- the hypothetical -- the hypothetical I posed was meant to pose the question, well, sometimes things do both, and how do we tell which it is--

Jeffrey L. Fisher: --If it actually does the latter and is performing its function while moving, then it is a vessel.

And that's what this Court held in Stewart.

There's not a primary purpose test.

If one of its purposes is to move people or things over water, then it's a vessel.

But that's not the purpose of a floating home.

That's not the purpose of a floating restaurant or something else that might be--

Justice Elena Kagan: Well, how do we know that.

Jeffrey L. Fisher: --You could tie it up and move it.

Justice Elena Kagan: How do we know that, Mr. Fisher?

I mean, maybe these floating homes are just a poor man's houseboat, right?

But the point of getting a floating home is actually to have a home that you can hook up to a boat and move from place to place, and so you don't have to, you know, have the motor running all the time or have the capacity to move it all the time, but when you want to move it on water and when you want to move your possessions on water, you have the capacity to do so.

Jeffrey L. Fisher: Well, with all due respect, Justice Kagan, that's not why people have floating homes.

The amicus brief explains that.

Don't look at -- but you don't have to look any further than the history of this.

The only two times it moved any significant distance were: One, when it changed ownership; and two, when a hurricane struck, so it had to be moved.

And look at your own cases.

In Pavone, which this Court cited with approval in Stewart, that structure moved hundreds of miles over several years.

This Court said not a vessel.

The structure in Evansville moved three different ways.

It moved up and down the Mississippi-Ohio River as it changed ownership several times over the course of 14 years.

It also moved every winter to avoid the ice that would come in.

And thirdly it was repositioned on literally almost a daily basis to accord with the stages of the river.

And again, applying this Court's well settled function test, this Court said that's not a vessel.

Justice Anthony Kennedy: But it was still -- it was still tied to the land with roads and ramps and so forth.

Here you've got the hose and the extension cord and the rope.

Jeffrey L. Fisher: Well, the important--

Justice Anthony Kennedy: And it seems -- and it seems to me, suppose you -- you want us to make some universal definition of we know what a floating home is.

Suppose this -- suppose there were another owner of a structure like this, and it moved to a different slip every week to get more shade or more wind or something.

Then that would be different?

Jeffrey L. Fisher: --It would sound to me just like the floating warehouse and office in Evansville as I just described that case.

But Justice Kennedy, let me say one more thing before I reserve my time.

Justice Anthony Kennedy: And suppose it moved -- suppose it moved up and down the canal to get better or worse weather during different seasons.

Jeffrey L. Fisher: If it's simply being repositioned and not being used for a transportation purpose, that is to move people or things, then it's not a vessel.

And that's exactly what this Court--

Justice Anthony Kennedy: Well, I have the same problem Justice Kagan says.

The whole point is that it can move.

That's the whole -- that's the reason you have it.

Jeffrey L. Fisher: --That is not the point, Justice Kennedy, with all due respect.

There's a difference between a floating home and a houseboat, and I urge you to look at the briefs on this point.

And this comes right back to your question--

Justice Sonia Sotomayor: Counsel, outside of your floating home, what other structures would be kept out of your definition of purpose or function and the city's definition of practically capable?

Can you imagine any other function that's out there floating around?

Jeffrey L. Fisher: --Other floating commercial--

Justice Sonia Sotomayor: Because they disavow water skis and garage doors and say they're practical, capable tests with--

Jeffrey L. Fisher: --Well, I'm not sure they can actually disavow that on their tests, but--

Justice Sonia Sotomayor: --Well, I know.

But--

Jeffrey L. Fisher: --Floating commercial establishments, floating pieces, floating docks, floating trampolines and play structures.

And, Justice Kennedy, if I could just answer your question and reserve the rest of my time.

The importance of the connecting of the utilities and the water hose, which was actually a specialized water hose, not a garden hose, but the importance of those connections is found in State codes across the country that distinguish between floating homes and houseboats, asking whether they're dependent on those connections to operate.

A floating home cannot function if it's not tied to land.

It doesn't matter how many amps we want to fight about, it's whether it needs that power from land, whether it needs those connections to land.

A houseboat, like any other vessel, can fully function away from port.

If I can reserve the remainder of my time.

Chief Justice John G. Roberts: --Thank you, counsel.

Mr. Gannon.

ORAL ARGUMENT OF CURTIS E. GANNON, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONER

Curtis E Gannon: Mr. Chief Justice and may it please the Court:

I think if I could start with Justice Kagan's questions, the government's position is that this is an objective function test and in evaluating when a structure is practically capable of being used as a means of transportation this Court has repeatedly recognized that function is important to that inquiry.

It did so as recently as Stewart, when it recognized that the function of the dredge there was to carry crew and equipment across Boston Harbor in the course of dredging a trench.

It also did so in the cases that Petitioner's counsel has already talked about, Evansville, Roper--

Chief Justice John G. Roberts: Can I -- can I interrupt you just there on the dredging?

You say the function of the dredge was to carry people and equipment.

I would have said the function of the -- the dredge is to dredge in the middle of the river.

Curtis E Gannon: --Well, the Court--

Chief Justice John G. Roberts: Right?

And so -- and I don't know which of us would be right, so it seems to me that that function test is a very difficult one to apply.

Curtis E Gannon: --Well, the Court in Stewart said that “ dredges ” -- and I'm quoting from page 492 --

"serve a waterborne transportation function, because they carry crew and equipment across-- "

Chief Justice John G. Roberts: Well, I know what it said.

I guess I would say, obviously, it serves a waterborne function, but I'm not sure the first thing I would say when I see one of these dredges in the middle of the river is its purpose is to move people and equipment.

I would say its purpose is to dredge.

Curtis E Gannon: --Well, but in general, it needs to dredge not just in one place, because it's not just dredging a hole, it's dredging a trench.

It usually needs to move in order to do that.

Chief Justice John G. Roberts: No, but that's saying that it has to be able to move, and I agree with that.

But its purpose is still to dredge, not to move.

Curtis E Gannon: Well, I think that the Court--

Chief Justice John G. Roberts: You could use it if you had a -- you know, a transportation boat, right?

Any equipment you need to move, you put it on another boat and drop it off.

The people who work, you bring them over and drop it off.

Curtis E Gannon: --Yeah, I think that you could do that.

I think that's typically not the way the dredges that -- not the way the superscoop works in Stewart and it's not the way historic dredges worked in the case of--

Chief Justice John G. Roberts: Sure it is, isn't it?

I mean, the superscoop doesn't go to the -- maybe it does -- go to the shore every morning, then come right out again?

They move people back and forth with other boats, don't they?

Curtis E Gannon: --Oh, but I -- what I meant is that there are people and equipment on the superscoop when it is moving across Boston Harbor.

They didn't sort of take it out there all empty every morning and then load other things on to it that they -- that they brought out there.

And in Evansville, the Court recognized that the wharf boat there, which is a large structure -- it was 240 feet long, 48 feet wide -- it served as an office, a warehouse, and a wharf on the side of the river, and the Court said that it performed no function that might not have been performed as well by structures permanently attached to the--

Justice Samuel Alito: If someone builds a replica of an historic watercraft, a Viking boat, the kind of outrigger canoes that the Polynesians used throughout the Pacific Ocean, and the purpose of this is to display it in a museum, no one has any intention whatsoever of ever putting it in the water, but it's built so that if they did, it would -- it would function just like its historic antecedent, is that a vessel?

Curtis E Gannon: --I think that that would be a vessel, because it really -- its objective function, if you look at its design and its natural function -- that's the phrase that the -- even Respondent's law professor amici used.

They acknowledged that the function and purpose test is appropriate if it takes account of the craft's own design and natural function.

Justice Stephen G. Breyer: What about the -- I thought there was a -- a kind of caveat in one of these cases, maybe Stewart, that said take a thing that looks just like a boat, the Queen Mary, but if it is permanently -- they use the word “ indefinite ”.

I think they mean “ permanently ”.

Curtis E Gannon: Well, the Court--

Justice Stephen G. Breyer: But if it is permanently moored to the shore and is never going to sea again, then it isn't a vessel.

Curtis E Gannon: --That's true.

That's because it's no--

Justice Stephen G. Breyer: Then if the Polynesian boat is permanently in the museum, there's a lot of objective evidence of that, it would not be a vessel.

But if it's something they really could well take out on the sea, then it is, is that right?

Curtis E Gannon: --It is true that the Court recognized in Stewart and the Coast Guard's craft routinely operated dockside policy is based upon the presumption that something that used to be a vessel can cease to be a vessel if it is semi-permanently or indefinitely moored.

That's the phrase that the Court quoted in Stewart.

And the Court recognized that even something that's anchored to the seabed could--

Justice Stephen G. Breyer: That doesn't come up here.

That concerns the Queen Mary being sent to Long Beach and used as a hotel.

Curtis E Gannon: --And the Queen Mary is behind a -- is essentially behind a cofferdam.

It doesn't have ready access to open water.

It's connected to shore in all sorts of permanent ways.

We don't think that that's the type of case that we have here, because nobody is saying that this once was a vessel and it is now no longer one just because it's tied up to the dock in the way that it was tied up here.

And so, Justice Kennedy, we think that this isn't really a case about indefinite mooring as making the difference.

This is a case where you need to start with the question of was it ever a vessel.

And if the--

Justice Sonia Sotomayor: So I was right.

So that permanent mooring is a different inquiry in your mind?

Curtis E Gannon: --Well, permanent mooring is usually going to be relevant to the question of whether something ceases to be a vessel, because it's no longer practically capable of being used as a means of transportation.

That's the way the Court discussed the point in Stewart.

And -- and that's true even for a case like Roper, which was a former Liberty ship that was towed up and down the James River.

Justice Sonia Sotomayor: Well, that's a -- that's a somewhat easy case, because the hull, I think, was removed or something was removed that made it--

Curtis E Gannon: Well, there were things that had been removed when it had been decommissioned originally.

But if the court of appeals test were used here and the court were to conclude that something is a vessel if it is merely capable of being towed across water even to its detriment, then you can't explain the answer in cases like Evansville or in Roper where -- because the Evansville work boat was towed at least ten times, as described in pages 21 and 22 of the Court's opinion, and nobody was asking whether it had all the office furniture and light fixtures and things like that removed when it was towed at least twice a year for the seven years before that suit began.

Justice Elena Kagan: So, Mr. Gannon, you think that even at the moment that the thing is being transported, and let's say that the thing has, you know, various furniture and things on it, you think even at that moment under section 3, it's not a -- it might not be a vessel?

Curtis E Gannon: That's generally going to be true, yes.

If the purpose of the structure, the function, the objective function of the structure is to operate, just to be stationary beside the dock, then it's not going to be a vessel even when it's being towed behind another vessel.

There may still be rules about how it needs to be lit at night and things like that, but--

Justice Samuel Alito: What if it was more seaworthy so that it could be towed 200 miles without suffering any damage, even if there are, you know, small waves, let's say?

And the reason why it was built that way was so that when the person moves the person wouldn't have to hire a moving company to come with a van and take out all the person's personal belongings and ship those by -- by land.

This -- this is capable of moving and moving all the stuff that's in it without having anything damaged.

Would it be the same?

What would be the result there?

Curtis E Gannon: --Well, I -- I understand the point.

I think that, under a case like Evansville, that there does seem to be a difference between relocating the structure and using the structure to transport people and things.

But under an objective function test, if it really is designed to be mobile, and we look at it and we say it really looks like a boat and it's designed to move through water efficiently, it would probably look different from this particular craft.

But if ultimate mobility is part of the function of it, then -- then the answer could well be different.

But, for the most part, I think my answer is the same as I was trying to give to Justice Kagan, which is that this is either going to be a vessel all the time until it becomes so permanently moored that it should no longer be deemed a vessel.

Justice Samuel Alito: I really just don't understand your answer.

Mobility surely was a -- was a purpose of this because it was moved.

Curtis E Gannon: Well, I--

Justice Samuel Alito: It can be moved.

Curtis E Gannon: --There is a question about practical capability of being moved.

Justice Samuel Alito: Okay.

Well, that's something different.

Curtis E Gannon: And before, you were asking about the hook in the statute here.

We do think that the word contrivance does indicate that it's something that has a function that's determinable.

And there are lots of other areas in maritime law where the function of a vessel is a relevant question, and this is not an unanswerable inquiry.

The court uses purpose and function when it's deciding whether somebody is a Jones Act seaman--

Justice Ruth Bader Ginsburg: What you have said sounds like this structure is not a vessel, period.

But your bottom line in your brief is that, if we disagree with the Court of Appeals, we shouldn't say this contrivance is not a vessel, we should send it back -- for what?

What finding?

Curtis E Gannon: --We think that the record here was not really compiled with an object of answering these questions, the things that we think are relevant, because the district court and the Court of Appeals flatly rejected any inquiry into the purpose or function of the vessel.

And--

Justice Ruth Bader Ginsburg: So what would we tell them they should look into?

Curtis E Gannon: --That they should look into the purpose and function of the vessel.

They should also consider whether it would be damaged when it was towed.

That was something that petitioner tried to get.

He was proceeding pro se in the district court, offered to present evidence about--

Justice Anthony Kennedy: On the first question, purpose or function, what did they know that we can't know by looking at this picture and listening to these arguments?

Curtis E Gannon: --Well, I think that they could hear more about--

Justice Anthony Kennedy: I mean, I would be willing to stipulate they are better at this than we are, but let's -- let's assume.

Curtis E Gannon: --Well, I -- I think that somebody -- if somebody -- I can't tell everything about the structure.

We have these pictures, and we know that it has a ten-inch draft, but we don't really know how -- how well it is that--

Justice Anthony Kennedy: I want to be fair to the Court of Appeals, well, now, you tell us what the purpose and function is.

Curtis E Gannon: --And I -- if--

Justice Anthony Kennedy: Don't we know that?

Curtis E Gannon: --Well, I think that you -- in -- this is going to be a somewhat idiosyncratic case.

I think that this is an unusual structure.

That's why the surveyor on page J-43 of the joint appendix found that there were no comparables for sale in the state of Florida.

And so I think that most cases aren't really going to -- to be like this.

But if I wanted to put on evidence about that, I would probably compare -- decide whether this is more like the floating homes that are described in the Seattle floating homes brief that are really designed just to function in place near the shore.

I think that there would be more evidence about its capabilities while it was actually out on the water and things like that.

Chief Justice John G. Roberts: Thank you, Counsel.

Mr. Frederick.

ORAL ARGUMENT OF DAVID C. FREDERICK ON BEHALF OF THE RESPONDENT

David C. Frederick: Thank you Mr. Chief Justice, and may it please the Court:

The City brought this In Rem action against Mr. Lozman's uninsured houseboat to enforce maritime liens.

The houseboat was in violation of the wet slip agreement, and it posed a hazard to other vessels in the marina if, because of its flimsy moorings, it came unmoored during a storm.

The houseboat was located very close to the navigable channel of the Atlantic Intercoastal Waterway and next to a yacht-building facility next to the marina.

So the city faced a very real specter of being sued if the uninsured houseboat came unmoored and caused damage.

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 John G. Roberts: Just like an inner tube, right?

David C. Frederick: --No.

An inner tube actually does not--

Chief Justice John G. Roberts: Floats, can be towed, can carry a person.

David C. 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 John G. Roberts: One of those inflatable rafts where most of the parts of the people--

David C. 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 Stephen G. Breyer: With cup.

What about the cup.

David C. Frederick: Cup is not because a cup doesn't float.

Justice Stephen G. Breyer: Oh, well, this is lighter than you think.

Justice Sonia Sotomayor: No.

How about a garage door?

Justice Elena 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.

David C. Frederick: Justice Kagan, I -- I think we could imagine all kinds of de minimis types of hypotheticals that would satisfy the basic criteria.

But what the Court in Stewart said was practical capability as viewed in a real world sense.

And I'm not aware of any case -- and they've certainly not pointed to anything -- that identifies anything with those kind of practical attributes that would be subject to litigation.

Chief Justice John G. Roberts: --Well, practical capability viewed in a real-world sense -- and you're about transportation -- you're talking about things that were built for transportation, right?

David C. Frederick: You're -- yes.

You're -- that is true in the sense that one of the purposes as manifested through its physical characteristics is the ability to be moved across water.

And just as Mr. Lozman's houseboat here was moved 200 miles in the first towage after the hurricane wiped out every other vessel in the docks in the north bay marina, and he had it towed with a speed boat 70 miles to the city of Riviera Beach, those physical characteristics and attributes were recognized by the Court of Appeals when it applied the practical capability test.

And it said on page 15(a) of the petition appendix that certainly living, a domicile, is a purpose of a floating home, but mobility is also a purpose, and then demonstrated that mobility here.

Justice Sonia Sotomayor: Under your definition, how do you deal with Evansville?

David C. Frederick: Evansville is a case with many layers, but let me just start first start with the fact that the Court announced a practical capability test in Evansville itself.

That's what it applied.

It reviewed a district court record that had found no practical capability on the basis of the driveways and the more permanent connections to the utility system of the city, and it reviewed that factual record for clear error, which, of course, it didn't find, by--

Justice Sonia Sotomayor: What you are basically saying, we reached the wrong conclusion because the work boat floated, and it regularly was moved, and there was nothing to suggest that it couldn't carry people or things.

It happened not to because they would empty it, I understand, before they moved it, but it could have.

So if it was practically capable of floating, whether it was semi-tied to land or not, it was released from land on somewhat of a regular basis.

So are you suggesting that in Stewart we change the Evansville rule?

David C. Frederick: --No.

In Stewart you said what the holding of the case was, which was that it was not practically capable of movement at the time that it sank.

Now, I would like to just step back for a second because I think Evansville needs to be understood in the time in which it was decided.

At that time, many courts, including this one, at times, applied a snapshot test, what is happening to this particular watercraft at the moment in time where an admiralty tort occurs, where the contract ensues, and the like.

This Court subsequently disavowed the snapshot test; but, in Stewart, what the Court did was to describe Evansville and Cope as cases about not practically capable of movement or carriage because of their connections to the land.

In Evansville, the owner of the wharf boat also owned the adjoining land and had control over the dock and built driveways so that trucks could come on and off, and had an eight-inch concrete lining on the houseboat which are not typically -- sorry, on the wharf boat, which are not typically attributes one would think of as ordinarily for vessels.

Justice Stephen G. Breyer: I -- I got stopped here, back at Stewart.

“ Practically capable of maritime transport ”.

Now, those are words I thought you have to interpret with some degree of common sense, and the reason for that is because each of us can of course imagine all kinds of things, from Styrofoam sofas to -- to just dozens of absurd things that have nothing to do with ships or vessels and really could be used theoretically to carry something on the water.

So what we think of is that practical capability means that there must -- this must really have as a function, as one of its functions -- I would like to say purpose, but some people apparently don't like that--

[Laughter]

--because it -- it has some other implication that I don't understand.

Okay.

So call it the function or the capacity, and it really does as a significant matter of carrying things, and not just accoutrements like nails in its walls, but -- but things from place to place to some significant degree, okay?

So I have just taken the words of the test and through voice -- and I'm trying to focus your mind, I've said you have to do that really as a -- it has to be some significant degree there, which this one doesn't seem to have, all right?

So you see what I'm trying to do, and really it's a way of getting you to respond to that.

David C. Frederick: I think it certainly did have that.

It had that capability, Justice Breyer, because it was actually moved on multiple occasions.

Justice Stephen G. Breyer: But it wasn't carrying things.

David C. Frederick: It was carrying his personal effects.

Justice Stephen G. Breyer: Well, that's true.

And of course a Styrofoam sofa is -- is carrying the holes, or it's carrying the -- you know, the -- the coffee can or something that is on top.

But when you have a thing that carries itself, that isn't good enough.

David C. Frederick: I--

Justice Stephen G. Breyer: It has to be something to do with transporting a thing, transporting some stuff.

David C. Frederick: --It transported his computers; it transported his clothes.

Except the for the fact that his guns were confiscated before the marshals took it--

Justice Stephen G. Breyer: That is part of the house.

David C. Frederick: --it was moved, that -- no, they are not part of the house.

They are part of the personal effects, just as someone had personal effects in his or her dwelling.

And when the marshal towed it, it carried two people as part of the crew for the transit between--

Justice Stephen G. Breyer: Okay.

Think of what it's doing and compare that with the dredge that every day the workmen get on, they go into the middle of Boston Harbor, and then they start to work, and they dredge.

And so you'd say, well, I see one of the purposes of this boat is to carry those people out there.

Now think of this one.

This one is carrying things, but that which it carries is just what is part of a normal house which has nothing to do with transporting things on water.

David C. Frederick: --Well, actually, I think Mr. Fisher conceded that if this had a motor and it was carrying exactly the same personal effects, it would be a vessel.

Justice Stephen G. Breyer: Okay.

How do you then distinguish -- I see where you're -- you're just saying my distinction is not going to work, and so then I would ask you to say what one you want to come up with that will get rid of all the absurd examples that are lurking in the back of my mind, which I will avoid -- and yet include--

[Laughter]

David C. Frederick: I think that a vessel that has practical capability, a watercraft that has practical capability to float, move and carry goods or people, that's a vessel.

Justice Stephen G. Breyer: The floating sofa?

The floating sofa?

Somebody is retired, he likes to see it float around in the water, and you know, and it carries a cushion.

I mean, really that's absurd.

So -- so how do you distinguish -- I gave you an absurd example.

I don't need to say more.

David C. Frederick: I think I've given up the absurd hypos because there are no litigation on them.

Justice Stephen G. Breyer: Well--

Justice Elena Kagan: Well, suppose, Mr. Frederick, this.

Suppose we had a trial on the question of whether these floating homes or this floating home was a vessel, and we found out that actually 99 percent of people who buy floating homes move it exactly once.

They purchase the floating home and then they move it to the place where they want the home to be, and then it sits there.

And this was just a clear evidence that, you know, except if there's a hurricane or a tornado, people do not move floating homes.

They buy it, they move it to where they want to live, and then it sits.

In that case, do you think the thing is a vessel?

David C. Frederick: Yes, if it has the practical capability.

That's what the statute says, Justice Kagan.

It depends on if you want to rewrite the statute to have subjective intent--

Justice Elena Kagan: Well, it's a statute--

David C. Frederick: --of lots of vessel owners.

Justice Elena Kagan: --You are reading the statute -- you are reading the statute as if it says something can be transported over water.

But the statute doesn't say that.

It says something can be used or capable of being used as a means of transportation on water.

So that -- that the question is whether this thing is transporting other things over water, and whether that's its function; and in my hypothetical it's not its function.

Its function is to serve as a house.

That house happens to be on water but it's just a house.

David C. Frederick: Justice Kagan, the fact that a vessel only moves once doesn't mean that it's not a vessel if it has -- if it meets the attributes of the statute, as explained by this Court in Stewart, of practical capability.

The Titanic, of course, is a perfect example of that.

The fact that a person may choose mobility as one of the attributes and not exercise that attribute of course goes to subjective intent, and as the Maritime Law Association's brief points out here, you do not want to apply an intent standard that goes to what the owner intends to -- which function the owner intends to exercise, because that leads to manipulation.

And the casino--

Justice Ruth Bader Ginsburg: Mr. Frederick, the city's position, it is whatever we want it to be.

That is the first time Lozman was sued by the city.

It was not under admiralty jurisdiction, it was a plain old landlord/tenant suit in State court, right?

David C. Frederick: --Yes, but there are some exceptions and if -- I will let you finish your question.

Justice Ruth Bader Ginsburg: Yes, well, my question is, is it -- is it a vessel when you want it to be, and just an ordinary landlord/tenant situation when you want it to be that way?

David C. Frederick: No.

I would answer that question as no.

Justice Ruth Bader Ginsburg: Well, let's take this very incident, that is he failed to comply with the revised rules and he was behind in his payment of dockage fees.

Could the city have brought that fee in an ordinary State court for the arrears?

David C. Frederick: No.

Justice Ruth Bader Ginsburg: Why not?

David C. Frederick: Because it's a vessel and the exclusive admiralty jurisdiction of the United States courts means that it has to be litigated in the United States courts.

Justice Ruth Bader Ginsburg: What about--

David C. Frederick: That's why in the first one, if I could just explain about the State court, because I think that there is some misapprehension about what happened.

His dog was not complying with the ordinances, and he was not complying with the city ordinances; that's why -- that's why the city brought the in personam action against him in State court.

There was no admiralty basis there.

He was still paying all of his dockage services and fees.

It became an in rem action when the lien was not being discharged through his payment on the dockage fees, and the city had a basis under the wet slip agreement to assert a maritime lien, which is a classic admiralty action under Federal jurisdiction.

So they are very different actions.

Under the State court action he could still stay at the marina, but he had to be on a houseboat that complied with the marina's rules.

He had two house boats at the marina, and this one was not in compliance, and that is why the city brought action against it.

It was the only one of the 500-plus vessels and boats in this marina that wasn't in compliance with the rules.

Justice Anthony Kennedy: We -- we want I suppose to give the courts of appeals a test that works.

I -- see if this is, sums up your argument, or your position.

You look to see the objective characteristic, the physical capacity of the -- of the structure, and then you look not to purpose but to its objective function: does it carry goods under the statute.

And then I suppose you could under that say that this is a vessel, but that this presumption is overcome if it's permanently moored in the way the Evansville dredge was.

Is -- is that your argument?

David C. Frederick: I think that sums up in a nutshell what we would regard as a proper statement of the law, of what this Court has already said, and that is that if it's got practical capability, those practical characteristics, Justice Kennedy, will manifest itself in the functions.

If somebody wants to buy a domicile on land, one buys a house or a condo.

If you buy a floating home, that has the attribute, the physical characteristics of floating, movage -- and moving and carriage--

Justice Stephen G. Breyer: --That's where -- that's exactly -- I mean, I think that works pretty well; and you think that works pretty well, but I don't agree with you at the moment hypothetically.

So something's wrong somewhere.

And what I'm thinking is that you had could have very odd things, you know, like an advertising sign, floating advertising sign and tow it around.

Is that floating advertising sign a vessel?

No, it doesn't carry goods but it does carry, say, the eyes on the figure which might move around; and then it does -- and Justice Kennedy said carrying goods.

All right.

Does this structure, this houseboat have a function of carrying goods?

You're tempted to say yes, because his personal effects are in it.

I'm attempted to say no, because there is nothing special about those personal effects that isn't exactly similar to their being in a similar structure on land.

That's where I am wondering if there is a distinction.

That's -- do you see what I -- what is bothering me?

David C. Frederick: --Justice Breyer, there is no basis, I mean, with all due respect, there is no basis in your cases to hold that there is something about transportation that makes it somehow uniquely nautical or maritime as opposed to--

Justice Stephen G. Breyer: No, it's--

David C. Frederick: --household effects or other goods or services or people that are transported over land.

And that's why when the normal definition of transportation is to convey a person or a thing from one place to another, that's perfectly satisfied under the facts of this case.

And it is an undisputed record as Petitioner says, on page 27 of the cert petition, they ask for cert here for you to decide whether Mr. Lozman's state of mind about his indefinite mooring is somehow relevant to the definition of a vessel.

It clearly isn't.

Justice Sonia Sotomayor: I guess the problem is the list of absurdities that they point to, not the least of which is a dry dock, which you talk about whether it's permanently moored or not, but most dry docks are held in place by, you know, heavy ropes but you can cut them and you can stick something on them and they can float away.

Under -- so how do you--

David C. Frederick: I don't accept the premise of your argument.

The--

Justice Sonia Sotomayor: --For the--

David C. Frederick: --The dry docks with which I am familiar are anchored to the bottom so that they can stay in one place and they don't carry anything, so they don't meet the part of the test that requires carriage.

Justice Sonia Sotomayor: --So what do you do with the--

David C. Frederick: They are simply physical structures--

Justice Sonia Sotomayor: --Trampoline and the other examples your adversary gave?

Is a Trampoline that floats on water capable of moving -- it's moving the Trampoline.

David C. Frederick: --I don't think it's practically capable of carrying anything.

Justice Sonia Sotomayor: It's carrying the Trampoline.

David C. Frederick: And again--

Justice Sonia Sotomayor: So is the difference whether I attach something permanently or temporarily to the top of the floating thing, the floating board, the floating whatever?

David C. Frederick: --Well, it would not be subject to towage.

Here the houseboat had -- this is important because the houseboat under the testimony Mr. Lozman elicited at trial had four towing cleats that were welded into the structure of his houseboat so that it could be towed without torquing and twisting the houseboat and causing it to sink.

The hypotheticals that the other side has suggested don't have that additive feature of towing cleats that are used for the purpose of being able to convey the houseboat--

Chief Justice John G. Roberts: Counsel, your example of the towing cleats highlights one of the difficulties I have; one, because obviously the question of, well, what if they didn't have the towing cleats, and then what if they had the towing cleats and then took them off, what if they were temporary towing cleats.

One of the things, this is a jurisdiction statute and we like jurisdictional statutes to be clear and easy of application.

Why do you think your test is easier than your friend's test?

David C. 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 John G. 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.

David C. Frederick: --Well, Mr. Chief--

Chief Justice John G. 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.

David C. Frederick: --We would submit that Congress did not intend a you-know-it-when-you-see-it test.

House barges, barges have been vessels since the time of Cleopatra.

The fact that it is flat-bottomed and it floats and it moves and it carries things does not make it not a vessel.

Justice Ruth Bader Ginsburg: --Mr. Frederick, this is kind of an idiosyncratic case.

There are many cases I think in the courts now about floating casinos.

I take it under your definition the floating casino would be a vessel subject to maritime jurisdiction.

David C. Frederick: Yes, unless it has a physical impediment that takes it out of one of the three attributes that doesn't make it a vessel.

If--

Justice Ruth Bader Ginsburg: As long as the vessel stays in one place and the gambling goes on in one place, then it may be towed to a different location, and it stays there.

You say because it is able to be moved from one place to another it qualifies as a vessel?

David C. Frederick: --Yes.

Justice Anthony Kennedy: Even if it's rather permanently moored with a, with a -- like the Intrepid on the Hudson River--

David C. Frederick: I'm not familiar--

Justice Anthony Kennedy: --With about -- aircraft carrier.

But it's really fixed in there with regular walkways and so forth.

Very -- it would cause a lot of work in order to move it.

David C. Frederick: --We suggest that the way the court should think about that problem is as a physical impediment.

Are physical impediments preclude its moat movement or its carriage or its floating capacity--

Justice Elena Kagan: Mr. Frederick, if that is the case, then your test really comes down to how securely is something fastened.

I mean, you have to deal with Evansville's wharf boat and Cage's dry dock, and you have to deal with all these floating casinos and restaurants.

And you're saying that in all these cases we are supposed to look to is it a rope or is it a cable, how many cables, how quickly can it be disengaged, and that that's going to end up being the test that you would have us adopt which is how easy it is to get out of the port.

David C. Frederick: --I think that's a fair way to view it, Justice Kagan, and it's a perfectly appropriate one.

The Belle of Orleans case--

Justice Elena Kagan: That really does become a jury question -- a question of fact for everything, right?

You know, are there six cables, are there nine cables, what are they made of, you know, how long is it going to take to rip up the I-beams, whatever?

David C. Frederick: --Well, I think that as a practical matter, this arises in only a couple of instances and those are the casino boats, many of which were vessels and they traversed the rivers allowing people to gamble because that's how state laws required them to perform.

And they have since stopped trying to be vessels because of state law changes that they were able to make.

And so the question as a practical matter is are there physical impediments to the ability of that boat to use the capability to move?

The Star of India, which was referenced in the Belle of Orleans case, was not -- was a vessel, a sailing vessel from the 19th century.

In 1926 they took it out of commission as a sailing vessel and they towed it to San Diego, where it sat for 50 years tied to the dock, and for the bicentennial, they decided let's get the boat out and sail it and they sailed it for the bicentennial.

The Ninth Circuit held that's a vessel because it has the capability of being used as a vessel.

And the fact that something is moored for a long time, if it has the physical attributes to be a vessel, it is a vessel.

The United States -- the USS Constitution, the famous USS Constitution would be shocked to have heard Mr. Gannon's statement about vessel because there are 200 Navy service members who service the USS Constitution and take it out periodically for sail.

Justice Stephen G. Breyer: --Is there any problem here, which I think maybe the coast guard and the other people who are responsible for vessels, say once we start thinking that everything in the house is a vessel -- I overstate -- we are going to have an impossible time doing our job.

I mean, you know, you are going to see some kind of a log next to a beach somewhere and somebody's going to start calling it a vessel.

We have got to limit this somehow to things that really are used as vessels.

David C. Frederick: Yes--

Justice Stephen G. Breyer: Is that a problem, and if so, how would you deal with it?

David C. Frederick: --If it were a problem the coast guard would have signed the Solicitor General's brief in this case which they have done in other cases in which transportation and vessel status have been relevant like in Sprietsma v. Mercury Marine, United States v. Locke, in which the coast guard--

Justice Sonia Sotomayor: This is not very compelling in this case because they have regulations that pretty much echo what the Solicitor General is saying, so it's not as if they were going to take a different position.

The Solicitor General is basically saying follow the coast Guard regulations.

David C. Frederick: --And the statute underlying those regulations, Justice Sotomayor, is found at 46 USC 4302, and it provides the secretary very broad discretion on what to include within the regulations and what not to.

After this court decided the Stewart case, the secretary suspended many regulations for dockside vessels until the coast guard could issue new regulations.

There is a hint, there is a suggestion that there might be a problem, but there is not anything that is really given in practical terms.

Chief Justice John G. Roberts: Well, but, I mean, there is some easy things to visualize as a problem.

If this is a vessel, then the maid that comes on twice a week is a seaman under the Jones Act, right?

David C. Frederick: No.

And the reason why is because as this court recognized in Stewart, the in navigation requirement is something that has been used for limiting the reach of Jones Act seamen in those circumstances in which a vessel is taken out of navigation.

So I think that it would be appropriate in a case like this where this is a classic instance of a maritime lien, dockage--

Chief Justice John G. Roberts: I'm sorry, taken out of navigation, but not every time it's docked, right?

David C. Frederick: --No.

But -- and in fact, I think the question of who is a Jones Act seaman is a different test that this Court last discussed in the Chandris case in terms of its substantial connection to the mission of the vessel.

And that -- I think that the Court could safely leave the Jones Act issues aside, because they bring in an entirely different regime that focuses on the worker's connection to the vessel as opposed to the definition of vessel itself.

The definition of vessel itself here is, as Justice Scalia pointed out, part of the Dictionary Act, and it is something that does apply more broadly.

But as we briefed in this case, there are two provisions that take that definition and then they add an intent requirement as specific language in different parts.

So that if that idea, function, or intent or purpose is something that is germane to that particular statutory function, than that is a question that becomes a question for jurisdiction.

But I'd also like to point out that both, I think, the district court and the court of appeals here assumed that there was jurisdiction here because there had not been evidence that contested the basic principles that the City brought when it filed this in rem action.

And because the case then moved into the merits phase, the district judge here initially denied the motion to dismiss for want of jurisdiction without prejudice.

And then as the evidence came in, revisited the question to provide a fuller explanation, and at that time made the ruling that Mr. Lozman had not put in record evidence that affected the practical capability of the test.

The only thing Mr. Lozman argued in the court of appeals as a reason for error was that because he intended to live there indefinitely, even though he had no contractual or property right to do so, and he had signed a wet slip agreement that provided the marina complete discretion to move his houseboat within any of the slips, or to order of the houseboat to leave on 3 days' notice, the question of whether or not there was any record of evidence on practical capability got to the Eleventh Circuit, and the Eleventh Circuit, in applying a practical capability test, said the things that Mr. Lozman had argued, he didn't offer record evidence.

So, Justice Kennedy, to your point, I think that with respect to the Court of Appeals and how it did do its job is an important facet of the case as it comes here.

They initially asked you in the cert petition to grant cert because the Fifth Circuit and the Seventh Circuit have implied an onerous intent test.

They've not defended that test.

And it is abjectly erroneous because you can't have vessel status be so easily manipulated by an individual's intent.

And now by trying to morph it into some kind of function or objective purpose standard, they've essentially done exactly what the Eleventh Circuit said they had offered no evidence in the district court to try to prove.

If there are no further questions.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Fisher, you have 3 minutes left.

REBUTTAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER

Jeffrey L. Fisher: Thank you.

I think Mr. Frederick's best argument that I've heard, and some of this Court has echoed it, is that this is a vessel because it was moved around and it carried his personal effects.

The difficulty is that argument runs absolutely headlong into Evansville and Roper; it cannot be squared with those cases.

And I would be willing to rest my entire case on simply this Court reading and applying those cases.

In Evansville, this Court dealt with something that carried around the effects of a business office.

In Roper, this Court dealt with something that carried around grain and was far more seaworthy than the structure in this case.

Both instances, the Court said they're not vessels because the function was not to carry those things around, it was merely -- they were merely incidental relocations.

Now -- so for that reason, the Eleventh Circuit simply cannot be right when it says that function is irrelevant.

And the City can't be right on its test either.

The only way the City has proposed to deal with those cases is to look at how securely the structure is fashioned.

And Justice Kagan, you're exactly right.

If you want a recipe for disaster on jurisdictional questions, start asking whether it's chains or ropes.

And not only that, if you want something that's utterly manipulable, tell the yacht owner who has his yacht down in the harbor that all he has to do is hook it up to the dock with chains instead of ropes and now he's out of maritime jurisdiction.

So this Court's cases for almost a century have applied the exact test we're asking this Court to apply.

And even if you're not 100 percent persuaded that that's what the statute is best read as doing, that is what we have done for over 100 years, and that is how maritime law has built up and guaranteed on those -- on those understandings.

And it's not just the questions we have been talking today -- it's employment law, tort law, all the rest are built on this test.

And we're asking this Court simply to reaffirm what it has done in the past.

So I think that leaves the question of, when you know the Eleventh Circuit applied the wrong test and you know the City's test can't be right, do you vacate or do you simply reverse?

And we think -- Justice Kennedy, we think that you can simply reverse.

You have everything in the record you need, most notably in the surveyor's report.

And you can look at four things.

Look at the -- look at the materials used, the shape of the structure, its equipment and the utilities.

The materials used were plywood and ordinary land-based structures.

Chief Justice John G. Roberts: That is -- what was used in the Higgins boats in World War II.

Jeffrey L. Fisher: I'm -- I'm not saying any of these are determinative, Mr. Chief Justice, but it's a totality that tells you what it is.

And the next thing is the shape.

Exactly as you referred.

This is a rectangle that sits 10 inches under the water, is not meant to be moved around.

Look at the -- look at its features.

It has French doors on three sides a few feet above the water line.

That's not what a vessel -- not how a vessel is designed.

And finally, its utilities.

Again, at Joint Appendix 40, for example, it says this thing has no batteries.

It is utterly dependent on being hooked up to land.

That's the only way it can function.

So if this Court does nothing else between now and casting its vote and writing its opinion, revisit this Court's prior cases and reassert the rule that this Court has always applied.

Chief Justice John G. Roberts: Thank you, counsel.

Counsel.

The case is submitted.