SCOTUS Embellishes Polly Adler’s Dictum and Holds that a House is Not a Boat

Though overshadowed by the antics of yesterday’s Koontz oral argument,  we also have a new SCOTUS opinion in Lozman v. Riviera Beach, No. 11-626, January 15, 2012, which should be of interest to land-use law junkies. There, the Supreme Court reversed the 11th Circuit, and held that a floating house is not a navigable vessel, and thus its regulation does not fall under the rubric of admiralty laws but is rather subject to local land-use regulation. A witty friend has observed that maybe it should be thought of as being in a “floating zone.” But enough already with the bad jokes.

 The subject structure was a floating plywood house with an empty bilge below, to keep it afloat. Lozman kept it in a marina, but the city wanted it out of there and, using maritime law, seized it and had it towed away and destroyed. Lozman sued and lost in the trial court and in the U.S. Court of Appeals for the 11th Circuit. Those folks thought, more or less, that if it floats, it’s a boat and as such is subject to maritime law. SCOTUS disagreed. Justice Breyer, speaking on behalf of seven Justices, thought that definition was too broad because, inter alia, under it a floating plastic tub would be deemed a vessel subject to maritime law which it obviously isn’t, notwithstanding old salts’ occasional references to their vessel as an “old tub.”

The majority’s bottom line:

 ”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. [citation]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 factualambiguity to the City) only its own furnishings, its owner’spersonal effects, and personnel present to assure thehome’s safety. [citation] 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”).

What this tells us is that a boat can be a house, but a house cannot be a boat.

Justice Sotomayor, with Justice Kennedy’s concurrence, dissented, arguing that the case should have been remanded to the lower courts for further determination of the floating home’s status.

The interesting part of the majority opinion is that it contains a picture of the subject home. So take a look at it, and using the late Justice Potter Stewart’s famous legal test for pornography (“I know it when I see it”) tell us if you would consider Lozman’s waterborne pride and joy a vessel or a house. But before you get carried away, do reflect on the fact that the California Supreme Court once held that a freeway is an electric railway, and that — in their Lordhips’ own words in another case — “our holding was dictum.”

Finally, no case worth its salt (no pun intended) is complete without reference to money. First, one telling argument by the feds, arguing as amicus curiae, was that if this thing were classified as a vessel, it would abruptly impose heavy burdens on the Coast Guart which has the duty of inspecting vessels. Second, when the city seized Lozeman’s home it had to post a bond under maritime law, which it did. So inasmuch as the city was wrong in destroying Lozman’s floating home, it will now have to pay for it. While we have no idea what a floating Florida home may be worth, that $25,000 bond will come in handy in discharging the city’s monetary obligation to Lozman.

Afterthought. Apropos absolutely nothing,  this debate whether a house is a boat, reminds us of that all-time humorous classic created by some clever  Canadians, in the form of a judicial opinion (Regina v. Ojibway, 8 C.L.Q. 137 (1965)) in which the court decided the issue of whether an Indian pony, fortuitously saddled with a feather pillow was a “small bird” within the meaning of the Canadian Small Birds Act, while traversing a national park. The holding was . . . You tell us. 

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