Capt. Max Hardberger
Max Hardberger is a maritime attorney, flight instructor, writer, and maritime repo man. He has been a correspondent for WorkBoat since 1995. His memoir, Seized: A Sea Captain’s Adventures Battling Scoundrels and Pirates While Recovering Stolen Ships in the World’s Most Troubled Waters, was published by Broadway Books in 2010. He’s appeared on FOX, The Learning Channel, National Public Radio and the BBC, and has been the subject of articles in Fairplay Magazine, the Los Angeles Times, Men’s Journal, Esquire (UK), and the London Sunday Guardian.
When a boat isn’t a boat
January 24, 2013
the risk of cementing popular opinion that “the law is an ass,” the U.S.
Supreme Court has finally issued a clear and unequivocal opinion that all floating objects are not vessels.
Lozman v. City of Riviera Beach, Florida, decided on Jan.
15 with only two dissenters, the Supreme Court noted, in the words of Justice
Stephen Breyer, that, “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 … are not ‘vessels.’ ”
may be obvious to Justice Breyer, but in many jurisdictions of our federal
court system, for many years those items would have qualified as vessels merely
because they float. And what would seem to the casual observer to be a tempest
in a teapot is of critical importance in maritime personal injury cases where
plaintiffs invariably seek to have their places of work declared vessels under
the generous provisions of the Jones Act. In fact, up to now, a worker in a
wooden washtub or on a swimming platform permanently affixed to the shore, was arguably
employed onboard a vessel and therefore entitled to Jones Act relief.
is an issue with which I and many other maritime defense attorneys have
struggled with as we sought to exclude casino workers and others employed on fixed,
although floating platforms, from Jones Act coverage. The result too often
depended on the luck of the draw — which federal court the plaintiff had the
right to bring suit in. This kind of inconsistent jurisprudence is bad for a
number of reasons, not the least of which is forum shopping. The predictability
of outcome in a legal case is a moral and procedural necessity, and at last the
Supreme Court has brought it to this issue.
average person can be excused for scratching his head in wonder at a system
that can say a boat is not a boat, and plaintiff attorneys may be excused for
howling in outrage. But the fact is that the issue is now stare decisis, a
settled matter. It is long overdue. The treatment of all maritime workers, even
those only marginally connected to a vessel, as “wards of the court” was an unfortunate
holdover from the long-vanished days when U.S. seamen needed special protection.
although the Supreme Court did not address the issue of a worker onboard Lozman’s
houseboat, the ruling will have consequences far beyond the question of whether
Riviera Beach unfairly seized and destroyed his floating home. It may help curb
some of the Jones Act abuses that flourished in pre-Lozman days.