International Waters

Capt. Max Hardberger When a boat isn’t a boat

January 24, 2013

At 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.

In 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.’ ”

That 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.

This 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.

The 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.

So 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.

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