It used to be said that the way to identify whether a stream was navigable was whether a log would float in it.   Seems a bit old-fashioned.  Perhaps it now could be said that the way to know whether a floating structure is or is not a “vessel” is to ask whether, if it were a styrofoam sofa, would it float?   Seems a bit silly, but that is sometimes the way it goes when the Supreme Court Justices try to outdo each other in imagining homely illustrations in order to make legal points.   It was Justice Stephen G. Breyer (usually to be counted upon to go from the ridiculous to the sublime with homely examples) who wondered on Monday about that lightweight sofa bobbing on the surface, perhaps with a retiree sitting back and enjoying being carried along.  At least it was funnier than Chief Justice John G. Roberts, Jr., wondering if an inner tube is a boat.

Breyer and the Chief Justice were reacting to Washington lawyer David C. Frederick, who had urged the Court in Lozman v. Riviera Beach to rule that a floating structure is a “vessel” in a legal sense “if it floats, moves, and carries people or things on water.”  Frederick was going for the purest of simplicity as the Court tried to untangle the case of a Florida floating home that wound up in a maritime court on the theory that it was a “vessel,” legally speaking — even though the only way it could move was to be towed, like a garbage scow.  (A garbage scow did not actually get into the oral argument, but Justice Anthony M. Kennedy made it clear, with abundant sarcasm, that this lowly structure was far from a mansion: said he, it was “a magnificent structure” that had been “mercifully destroyed.”)

The definition of a “vessel,” for purposes of maritime law is, indeed, a very big deal for the maritime industry, for the Coast Guard, and for lawyers who practice in the arcane field of admiralty law.  While the Justices were having boatloads of fun with the Lozman case, they knew that the outcome of it will shape maritime commerce in a very important way.  Because the Court’s precedents on the point seem to meander like so many leaves on a brook, it would be quite important if the Court could say — once and for all — what the word “vessel” means.  That’s why the Court reached out and took the case of the eccentric South Florida millionaire, Fane Lozman, and his floating home — of which, it was said Monday, there was not another like it in all of Florida.

Stanford law professor Jeffrey L. Fisher, who usually appears in criminal law cases but also has an expertise in maritime disputes (like the one over the Valdez oil spill), ran into a good deal of hard questioning because the Justices said he was confusing a floating structure’s “purpose” with its “function” and was relying too heavily upon the fact that Lozman’s houseboat was “indefinitely moored” to a dock in Riviera Beach.   Most of the Justices seemed to think that what distinguishes a “vessel” is its function, and, while they implied that Fisher was getting too complex with his wording, they also suggested that Frederick was getting too loose with his proposal that the Court focus upon the structure’s “practical capability” to transport things upon the water.

The federal law on the subject of “vessel” says only that it is a “means of transportation” for moving goods or people over water.   Fisher said that might define a rather conventional “houseboat,” which has its own power, looks like a boat in its shape, and has as its purpose getting its occupants from one place to another.  But that phrase, the professor said, could not mean Lozman’s “floating home.”  He painted a word picture of it for the Justices: a square front, French doors on three sides, no way to get underway because it has no power.  Its purpose, he added, was to get tied up, and then “stand still” while Lozman lived in it as his residence.

Justice Samuel A. Alito, Jr., told Fisher that, “if you are relying on ‘purpose’ and ‘indefinite mooring,’ then you’ve lost me; neither is in the statute.”  Trying to help out Fisher, Justice Elena Kagan interjected: “You’re really saying that the function test is your test.”  Yes, the professor replied.  But then she complicated matters by commenting rhetorically, “Is a floating home just a poor man’s houseboat?”

Along the way, Justice Anthony M. Kennedy suggested that a floating structure could not be said to be “indefinitely moored” to a dock if its only connection was a rope, a garden hose, and an electric extension cord.  Such a structure has, as its “whole purpose,” Kennedy said, to be moved from one place to another, carrying its occupants.  Fisher would not accept that.

It was not clear that a federal government attorney, Assistant to the Solicitor General Curtis E. Gannon, succeeded in adding much clarity to the argument, as he insisted that the cases involving “indefinite mooring” turned on whether “it [was] ever a vessel.”  He also said that the words in the law that a vessel is “a contrivance” also suggested any inquiry into the floating structure’s purpose.

When Frederick took the lectern, and gave his simple definition of a structure that floats, moves, and carries something on the water, the Chief Justice commented: “Just like an inner tube.”  Helpfully, Justice Kagan added that, indeed, an inner tube could be said to carry something on the water if one pasted some pennies to it.

Although Justice Breyer would get involved to say that this legal puzzle had to be solved “with some degree of common sense,” the whole effect of that was submerged when he began talking about that styrofoam sofa.

Justice Kennedy seemed to be yearning for someone to spell out “a test that works” to aid the lower courts as they seek to define “vessel,” but the search for tests was getting increasingly stymied by what Justice Sonia Sotomayor pronounced as the “list of absurdities” that could be put forth to complicate any inquiry into what the term “vessel” really means.

Posted in Lozman v. City of Riviera Beach, Florida, Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument recap: If it floats, so what?, SCOTUSblog (Oct. 1, 2012, 4:29 PM), http://www.scotusblog.com/2012/10/argument-recap-if-it-floats-so-what/