Pacific Coast Congress of Harbor Masters and Port Managers 39 th Annual Membership Conference April 9-12, 2013 Keeping Ahead of Rising Tides
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1 Pacific Coast Congress of Harbor Masters and Port Managers 39 th Annual Membership Conference April 9-12, 2013 Keeping Ahead of Rising Tides
2 But is it Legal? A Legal Smorgasbord for Marina Operators! C. Kent Roberts! Schwabe, Williamson & Wyatt! Portland, OR Seattle, WA Vancouver, WA!
3 Lozman v. City of Riviera Beach, Florida! SCOTUS! January 15, 2013! What is a vessel within the meaning of federal maritime law?!
4 Fane Lozman s Houseboat:! 60 x 12 feet floating home.! French doors on three sides, sitting room, bedroom, closet, bathroom and kitchen.! No motive of power, no navigation equipment.! Capable of being towed.!
5
6 Towed 200 miles from Fort Myers to North Bay Village, near Miami.! Towed 80 miles from North Bay Village to Riviera Beach.!
7 Riviera Beach claim: $3,000 in unpaid dockage fees.! Foreclose maritime lien.! U.S. Marshall arrested Lozman s houseboat.!
8
9 Vessel sold at auction, Riviera Beach buys, houseboat is destroyed.!
10 Vessel includes 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! Is Lozman s floating home a vessel under federal law?!
11 Trial court:! Floating home was a vessel.! Court had admiralty jurisdiction for in rem maritime lien foreclosure $3,040 for dockage.! 11 th Circuit:! Floating home was a vessel because capable of movement over water.! Owner s subjective intent to moor indefinitely does not defeat vessel standing.! Writ of Certiorrei to Supreme Court allowed.!
12 Conflicting case precedent:! Literal interpretation anything that floats! (houseboats, floating dormitory, bridge building derrick, floating casinos ARE Vessels)! vs.! Subjective intent to serve a water borne transportation function! (dry docks, floating platforms, floating docks, floating casinos NOT Vessels).!
13 Why do we care? - numerous Amicus Curiae filings! Coast Guard and regulatory overlay (U.S. Solicitor General).! Conflicting maritime lien, arrest and attachment law versus marine financing under state law (National Marine Bankers Association).! Land based worker versus seaman personal injury remedies and Jones Act claims (American Gaming Association).! Treatment of floating homes like ordinary land based homes under state environmental, construction, inspection and financing laws (Seattle Floating Homes Association).!
14 The back story:! Citizen activist Lozman v. Riviera Beach Municipal Marina! Helped defeat $2.4 billion plan to convert marina to large commercial complex through eminent domain.! City council rants.!
15
16 Evicted for failing to muzzle his 10-pound dachshund.! Jury sets aside eviction as retaliatory.!
17 Changed moorage rules prohibiting boats without hull identification numbers, shut off Lozman s power and ordered him to leave.!
18 Justice Bryer: 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.!
19 Lozman Vessel Test:! Would a reasonable observer, looking at the floating structure s physical characteristics and activities, consider it to be designed to any practical degree for carrying people or things on water.!
20 No navigation equipment:! Built and designed as a home.! No capacity to generate or score electricity or other utilities.! Not a houseboat which is typically motorized.! No features suggesting a design to transport things over water.!
21 Dissent:! 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.!
22 Lessons:!
23
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