Legal Case Summary

We'll hear argument next in case 11 626, Lowe's been versus the city of Riviera Beach. Mr. Fisher. Mr. Chief Justice, and may it please the Court. To be a vessel, the structure must be practically capable of maritime transportation. In this case, turns on how to assess such practical capability. And that's a question this Court answered over a century ago in Cope and Perry, explained that practical capability depends not on any physical attribute the structure might have, but rather, unquote, its purpose. That is, whether its function is to move people or things across water. And that test has been applied numerous times before and since, across decades, providing stability and overall coherence to General Maritime Law. And, of course, if I raise the test that way then, because it really hard me, that doesn't seem to me a very felicitous description of what the test is, is, is, amunciated to be. But I think the test is whether it's what, practically, able? Practically capable. Practically capable. Well, you could be practically capable of doing something, even though the purpose of setting the thing up has nothing to do with that. Well, that's not what this Court's case is saying. I understand. I'm just saying we ought to get a different test. And let's get rid of this. If we agree with you, let's get rid of this practically capable test, because, practically, capable, frankly, would make us come out the other way in this case. With all due respect, I don't think that's correct. In Evansville in 1926, this Court used that exact phrase, practical capability. And it assessed that practical capability by looking at, quote, the function of the structure. Again and again, in Evansville in others cases, this Court asks, was the function of the structure to carry people or things across water? Because it has, I understand that argument. It's got no connection, whatever, to the statutory language, right? Well, I think the word capable, obviously, is in this statute. And what this Court has said, is recently, is steward, is that capable. Capable. Capable. Capable. Capable. Capable. Purpose is not, right? Correct

. And what this Court said in steward is that capable means practically capable, not theoretically capable. There's a range of, of how broad the word capable can be. And again, going back over a century, every single time this Court's been confronted with that question, it's used the term function to describe whether or not something is practically capable of carrying people or things over water. Because the point is, you described cases with its purpose or function. There, the grief cited a district court decision, C. Villard's Marina, that says, floating homes like the one here that can be towed, and are not in the business of carrying people or goods, but can be towed miles across the water, that those constitute vessels. And this district court decision, C. Villard's Marina cited many, many cases. And do you say that that district judge just got it wrong or the cases were wrong? Justice Ginsburg, I think there's a confusion of terminology that I hope I can, that I hope I can straighten out of the outset. The term floating home is generally described to mean a residence that is designed to sit still and is not designed to carry people or things over water. The term houseboat is something that is self-propelled, generally moved people or things over water. What happened in the C. Villard's Marina case in my understanding is the court simply used the wrong term. It cited a lot of cases that held that houseboats, as we describe a houseboat as something that is designed to move its owner and owner's things from here to there are vessels. And we don't dispute that. But on the other hand, you have something called floating homes, which the brief filed by the Seattle and Salsalito Floating Homes associations give a very thorough description of what a floating home is and how it's different. And a primary way that it's different is that as opposed to a houseboat, which is doing its function, it's doing its job when it's moving things from place to place, a floating home can't function when it's out in the water being towed. None of the utilities work, none of the power, no equipment is a board. Well, but do anything. In your brief, I really lost count, but I think it's six times on the first two pages. You talk about indefinitely mord. Now, the facts are in dispute and we're not quite clear of the fact. But let's assume that this magnificent structure is, which was mercifully destroyed, but let's assume that it was attached to the dock by a rope, a garden hose, and an extension cord. And it could leave within 30 minutes notice. Is that indefinitely mord? And if the answer is yes, is that because of the subjective intent of the owner? Just as going to be, it would be indefinitely mord. That's the term this court used in Stewart to describe whether something was being used to transport people or goods. It had set, I have to emphasize that some of the assumptions we do in fact dispute in your hypothetical. But the fact that it sat still for three years, performing its function as a stationary residence shows that it was indefinitely mord. The importance of indefinitely moring, though I want to emphasize, is actually less important in this case than it might be if this were a dead ship case, where you had something that was conceitedly a vessel in the question. You know the law school games

. Suppose it was moved every month. It would still not be a vessel, and you don't have to look any further than this court's Evansville case. That would be indefinitely mord in your view. Well, I'm not sure if you'd use the term indefinitely mord at that point, but it certainly wouldn't be transformed into a vessel because look at this court's Evansville case. Before you get to Evansville, let's say it moved around once, but also it had a raked bow. It wasn't squared. Then it starts to look more like a boat. It moves around more frequently. It's moring. I mean, if you have a sailboat and you pull it at a dock, you hook up for water and plug in for power. It doesn't seem to me to be terribly significant. I think that's right if you start with something that is a vessel. The fact that you simply leave it at the dock for a long time doesn't take away vessel status. That's what this court held in Stewart. If you start with something that isn't a vessel, and I give you the Roper case, which did have a raked bow, it was an old liberty ship that everybody agreed had been decommissioned and turned into a non-vessel. Then they brought it in. They towed it. Justice Ginsburg, they towed it. They loaded it up with grain. Towed it again. Let it sit still for a couple years. Towed it back. Unloaded the grain. This court said it's not a vessel. Why did this court say it's not a vessel? And I'll quote from the opinion. It said because unlike a barge, the Harry Lane was not moved in order to transport commodities from one place to another. It served as a mobile warehouse performing its function of storing grain. And the evidence of this. Kellen, can I have been lost even as I've read the briefs because there's a lot of terminology that I'm not sure and standards that have been proposed that what concepts they're tied to. Okay? As I see our cases, I'm not quite sure where indefinitely Mord came from

. I've seen the word permanently Mord. You seem to be suggesting a difference between the two things. And I'm not sure where you've got the latter indefinitely Mord from. And how that ties to the concept of purpose. Does it, does the permanent status or indefinite mooring of a vessel not make it of a structure not make it of vessel? And, or does purpose get layered on top of mooring? Now, purpose is the overall question. It applies to what something is permanently Mord or floating on the sea. That helps you determine its purpose. And so the word where indefinite comes from, Justice Soda Mayors, from the Stewart case, with this court cited the Fifth Circuit's pavone case with approval, which should help that indefinitely Mord floating casino was not a vessel. I just don't see how you can get purpose into this statutory language. It says nothing about purpose. It says capable of being used as a means of transportation on water. How does purpose get in there? Who is purpose are we talking about? We're talking about an objective purpose, Justice Scalia. Well, then you're not talking about purpose. You're talking about function, right? You're just using purpose as a kind of strange synonym for function. But you're not talking about purpose of either the homeowner or the manufacturer of the boat. You're just saying, what is this word? What is this thing this floating home do? Exactly. And I'm doing, if I can just say this directly, I'm trying to do exactly what this court did in Coe and Evansville and Roper. The exact analysis this court applied in those cases is precisely what we want this court to apply here. So I'm thinking, can I ask about that definition? That definition comes from the Rules of Construction Act, right? Which provides the meaning of the word vessel as used in the United States code. Okay? Correct. What meaning of vessel in the United States code is an issue here? The word vessel in the Maritime Lean Act, which is what provides the Federal Forum assertedly for the plaintiff, the city, to bring this case. So the word vessel is its jurisdictional and substantive hook. Just a sort of a word, if I could return to your question about indefinite mooring, the importance of indefinite mooring in this case, where you have something that was not a vessel to begin with, is simply to ask whether it's been transformed into a vessel, exactly as this court asked in Roper. So is it being used for its function for which it was created? And if you just beg in the question, you keep saying it was not a vessel to begin with. What? Just restate the question? I'm not trying to beg the question. I'm just trying to describe our argument to you. There are some cases where you're arguing. What does your argument beg the question? I hope not. I'm trying to distinguish between two lines of cases, one being where you have things that were like the Roper case that were made as boats, as vessels, undisputably. And now the question is whether they've been pulled out of navigation

. As opposed to another set of cases, which we believe this falls into, where the question itself is whether this was ever a vessel. And in those kinds of cases, the indefinite mooring shows that it's being used for its function. It hasn't, for example, if I could give a hypothetical maybe it would help. Imagine a piece of floating dock. Now under their test, that would be a vessel, because you can unhook the dock, load it up with stuff, and tow it around. If a company wanted to use that as a makeshift barge. But no maritime case has ever held floating dock as a vessel. But if somebody did that, then it would no longer be indefinitely moored and would be using a different function and might be transformed into. I think you may very well have a good argument. But if you're relying either on purpose or on indefinite mooring, then you've lost me. I don't see how you get those into the words of the statute. Well, especially if you have a boat, it's tied up at the harbor here in Washington. It hasn't been moved for five years. It's indefinitely moved. Or ten years. Or twenty years. But if it's capable, you could untie it and sail it out into the river, doesn't it fall within the definition? It absolutely does, because the function of a boat is to move people things over water. So when it's sitting still, Justice Alito, it's not performing its function. So you're not really talking about a function test. And you're using strange words because they come out of arborum, kind of not your fault. But you're really saying that what should apply here is a function test. We're looking at this floating home. What does it do? Is it just a thing that sits or is it a thing that transports things over water? Isn't that your test? Yes, it is. So it changes one with the same thing as is not a boat sometimes. It is a boat. You've got a casino that's tied up for a month. During that time, it's not a boat. And then they move it around to go to the other side of the river. And during that time, it is a boat? No. This Court in Stewart rejected the snapshot test that I think is what you just described

. The question is whether it's, whether it has the function of moving people things over water or not now. Some people say that I'm just going to go up and down the river. The hypothetical life pose was meant to pose the question, well, sometimes things do both. And how do we tell which it is? If it actually does the latter and is performing its function while moving, then it is a vessel. And that's what this Court held in Stewart. There's not a primary purpose test. If one of its purposes is to move people things over water, then it's a vessel. But that's not the purpose of a floating home. That's not the purpose of a floating restaurant or something else that might be floating. Well, no, we know that. You could tie it up and move it. How do we know that, Mr. Fisher? I mean, maybe these floating homes are just a poor man's houseboat, right? That the point of getting a floating home is actually to have a home that you can hook up to a boat and move from place to place. And so you don't have to, you know, have the motor running all the time or have the capacity to move it all the time. But when you want to move it on water and when you want to move your possessions on water, you have the capacity to do so. Well, with all due respect, Justice Cagan, that's not why people have floating homes. The Amicus brief explains that. Don't look at it. But you don't have to look any further than the history of this. The only two times it moved any significant distance were one when it changed ownership. And two when a hurricane struck, so it had to be moved. And look at your own cases. In Pavon, which this court sided with approval and steward, that structure moved hundreds of miles over several years. This court said not a vessel. The structure in Evansville moves three different ways. It moved up and down the Mississippi Ohio River as it changed ownership. Several times over the course of 14 years. It also moved every winter to avoid the ice that would come in. And thirdly, it was repositioned on literally almost a daily basis to a court with stages of the river. And again, applying this court's well-settled function test, this court said that's not a vessel

. But it was still tied to the land with roads and ramps and so forth. Here you've got the hose and the extension cord and the rope. And it seems to me, suppose you want us to make some universal definition of we know what a floating home is. Suppose this, suppose there were another owner of a structure like this and it moved to a different slip every week to get more shade or more wind or something. Then that would be different. It would sound to me just like the floating warehouse in office in Evansville as I just described that case. But just as Kennedy, let me say one more thing before I was there. Suppose it moved up and down the canal to get better or worse weather during different seasons. If it's simply being repositioned and not being used for a transportation purpose, that is to move people or things, then it's not a vessel like that. Well, I have the same problem, Justice Kagan says, the whole point is that it can move. That's the reason you haven't. That is not the point, Justice Kennedy. With all due respect, there's a difference between a floating home and a houseboat and an allergy to look at the briefs on this point. And this comes right back to your question. Outside of your floating home, what other structures would be that? That would be kept out of your definition of purpose or function. And the city's definition of practically capable. Can you imagine any other function that's out there floating around? Other floating commercial. They say they'd disavow water skis and garage doors and say they're practical, capable tests. Well, I'm not sure they'd actually disavow that on their test, but I know. But the floating commercial establishments, floating pieces, floating docks, floating trampolines and play structures. And Justice Kennedy, if I could just answer your question and reserve the rest of my time, the importance of the connecting of the utilities and the water hose, which was actually a specialized water hose, not a garden hose. But the importance of those connections is found in state codes across the country that distinguish between floating homes and houseboats, asking whether they're dependent on those connections to operate. A floating home cannot function if it's not tied to land. It doesn't matter how many amps we want to fight about. It's whether it needs that power from land, whether it needs those connections to land. A houseboat like any other vessel can fully function away from port. If I could reserve the remainder of my time. Thank you, Council. Mr. Ganon

. Mr. Chief Justice, in May of please the court. I think if I could start with Justice Kagan's questions, the government's position is that this is an object of function test. And in evaluating when a structure is practically capable of being used as a means of transportation, this court is repeatedly recognized that function is important to that inquiry. It did so as recently as Stewart, when it recognized that the function of the dredge there was to carry crew and equipment across Boston Harbor in the course of dredging a trench. It also did so in the cases that Petitioner's Council has already talked about. And I interrupt you just there on the dredging. You say the function of the dredge was to carry people and equipment. I would have said the function of the dredge is to dredge in the middle of the river. Well, the court. And so, and I don't know which of us would be right. So it seems to me that that function test is a very difficult one to apply. Well, the court in Stewart said that dredges, and I'm quoting from page 492, serve a waterborne transportation function because they carry away the water. I know what it said. I guess I would say, obviously it serves a waterborne function, but I'm not sure the first thing I would say when I see one of these dredges in the middle of the river is that's purpose is to move people and equipment. I would say its purpose is to dredge. In general, it needs to dredge not just in one place because it's not just dredging a hole, it's dredging a trench. No, I know. So that's saying it has to be able to move, and I agree with that, but its purpose is still to dredge, not to move. Well, I think that the court used it if you had a transportation boat, right? Any equipment you need to move? You put on another boat and drop it off, the people who work, you bring them over and drop it off? Yeah, I think that you could do that. I think that's typically not the way the dredges, the not the way the super-scoop worked in Stewart, and it's not the way historic dredges worked in the history. Is this any, I mean the super-scoop doesn't go to the, maybe it does. Go to the shore every morning, then come right out again. They move people back and forth with other boats. Oh, but I, what I meant is that there are people and equipment on the super-scoop when it is moving across Boston Harbor. They didn't sort of take it out there all empty every morning and then load other things onto it, that they, that they brought out there. And in Evansville, the court recognized that the Wharf boat there, which is a large structure, it was 248 feet long, 48 feet wide. It served as an office of warehouse and a wharf on the side of the river, and the court said that it performed no function that might not have been performed as well by structures. Suppose someone builds a replica of a historic watercraft, a Viking boat, the kind of outrigger can use that the Polynesians used throughout the Pacific Ocean. And the purpose of this is to display it in a museum

. No one has any intention whatsoever of ever putting it in the water. But it's built so that if they did, it would function just like it's historic antecedent. Is that a vessel? I think that that would be a vessel because it really its objective function. If you look at its design and its natural function, that's the phrase that the even respondents, law professor Amiki, used, they acknowledged that the function and purpose test is appropriate. If it takes account of the craft's own design and natural function. What about the, I thought there was a kind of caveat in one of these cases, maybe Stewart, that said, take a thing that looks just like a boat, the Queen Mary. But if it is permanently, they use the word indefinite. I think they mean permanently. Well, but if it is permanently moored to the shore and is never going to see again, then it isn't a vessel. That's true. That's because it's all done on the Polynesian boat is permanently in the museum. There's a lot of objective evidence of that. It would not be a vessel. And if that's something that really could well take out on the sea, then it is. Is that right? It is true that the Court recognized in Stewart and the Coast Guard's craft routinely operated doxide policy is based upon the presumption that something that used to be a vessel can cease to be a vessel. If it is semi-permanently or indefinitely more, that's the phrase of the card quoted in Stewart. And the Court recognized that even something that's anchored to the sea bed could be. That doesn't come up here because that's the reason. That's the Queen Mary being sent to Long Beach and used as a hotel. And the Queen Mary is essentially behind a coffered dam. It doesn't have ready access to open water. It's connected to shore in all sorts of permanent ways. We don't think that that's the type of case that we have here because nobody is saying that this once was a vessel and is now no longer one just because it's tied up to the dock in the way that it was tied up here. And so Justice Kennedy, we think that this isn't really a case about indefinite mooring as making the difference. This is a case where you need to start with the question of, was it ever a vessel? And if that question- So that permanent mooring is a different inquiry in your mind? Well, permanent mooring is usually going to be relevant to the question of whether something ceases to be a vessel. To see. As it's no longer practically capable of being used as a means of transportation. That's the way the Court discussed the point in Stewart. And that's true even for a case like Roper, which was a former liberty ship that was towed up and down the James River. Well, that's a somewhat easy case because the fall I think was removed or something was removed

. Well, there were things that had been removed when it had been decommissioned originally but if the Court of Appeals test were used here and the Court were to conclude that something is a vessel if it is merely capable of being towed across water even to its detriment, then you can't explain the answer in cases like Evansville or in Roper, where because the Evansville Warfboat was towed at least ten times as described in Pages 21 and 22 of the Court's opinion. And nobody was asking whether it had the all the office furniture and light fixtures and things like that removed when it was towed at least twice a year for the seven years before that suit began. So, Mr. Ganon, you think that even at the moment that the thing is being transported and let's say that the thing has various furniture and things on it. You think even at that moment under Section 3, it's not, it might not be a vessel. That's generally going to be true, yes. So if you're, if the purpose of the structure, the function, the object of function of the structure is to operate, just to be stationary beside the dock, then it's not going to be a vessel even when it's being towed behind another vessel. There may still be rules about how it needs to be a bit at night and things like that. What if it was more sea worthy so that it could be towed 200 miles without suffering any damage, even if there are, you know, small waves, let's say. And the reason why it was built that way was so that when the person moves, person wouldn't have to hire a moving company to come with a van and take out all the person's personal belongings and ship those by land. This is capable of moving and moving all the stuff that's in it without having anything damaged. Would it be the same? What would be the result there? Well, I understand the point. I think that under a case like Evansville that there does seem to be a difference between relocating the structure and using the structure to transport people and things. But under an object of function test, if it really is designed to be mobile and we look at it and we say it really looks like a boat and it's designed to move through water efficiently, it would probably look different from this particular craft. But if ultimate mobility is part of the function of it, then the answer could well be different. But for the most part, I think my answer is the same as I was trying to give to Justice Kagan, which is that this is either going to be a vessel all the time until it becomes so permanently more that it should no longer be possible. I really just don't understand your answer. Mobility surely was a purpose of this because it was moved. Well, it can be moved. There's a question about practical capability of being used. And before you were asking about the hook in the statute here, we do think that the word could try once does indicate that it's something that has a function that's determinable. And there are lots of other areas in maritime law where the function of a vessel is a relevant question. This is not an unanswerable inquiry. The court uses purpose and function when it's to deciding whether some of these are not exact. Semen, would you have said, sounds like this structure is not a vessel period. But your bottom line in your brief is that if we disagree with the Court of Appeals, we shouldn't say this contrivance is not a vessel, we should send it back for what? What findings? We think that the record here was not really compiled for the object of answering these questions, the things that we think are relevant because the District Court and the Court of Appeals flatly rejected any inquiry into the purpose or function of the vessel. So what would we tell them they should look into? That they should look into the purpose and function of the vessel. They should also consider whether it would be damaged when it was towed. That was something that Petitioner tried to get. He was proceeding, Jose, in the District Court, offered to us

. And the first question, purpose or function, what do they know that we can't know by looking at this picture and listening to these arguments? Well, I think that they could hear more about. I mean, I'd be willing to stipulate they're better at this than we are. But let's see. Well, I think that somebody, if somebody, I can't tell everything about the structure. We have these pictures and we know that it has a 10-inch draft, but we don't really know how well it is. And they want to be fair to the Court of Appeals. They said, well, you tell us what the purpose and function is. And if we know that? Well, I think that you, you, in this is going to be a somewhat idiosyncratic case. I think that this is an unusual structure. That's why the surveyor on page J, 43 of the Joint Appendix, found that there were no compropables for sale in the state of Florida. And so I think that most cases aren't really going to be like this. But if I wanted to put on evidence about that, I would probably compare, decide whether this is more like the floating homes that are described in the Seattle Floating Home's brief, that are really designed just to function in place near the shore. I think there'd be more evidence about its capabilities, well, it was actually out on the water and things like that. Thank you, Council. Mr. Frederick? Thank you, Mr. Chief Justice, and may it please the Court. The city brought this in-rem action against Mr. Loseman's uninsured houseboat to enforce maritime leans. The houseboat was in violation of the wet slip agreement and it posed a hazard to other vessels in the marina if because of its flimsy moorings, it came unmoored during a storm. The houseboat was located very close to the navigable channel, the Atlantic, intercoast of Waterway, and next to a yacht building facility next to the marina. So the city faced a very real specter being sued if the uninsured houseboat came unward in cause damage. Our position is that the houseboat is a vessel under Section 3 because it floats, moves, and carries people or things on water as the exact right. Just like in an inner tube, right? No, an inner tube actually does- Loads can be towed, can carry a person. Well, a person actually most of the body parts of a person would be underwater and would be through the water. Mr. Chief Justice. One of those inflatable rafts where most of the parts of the people went. The test would be what's the practical capability and a raft that has a bottom actually could very well be a vessel under the appropriate standard of practical capability. What about the cup? The cup is not because the cup doesn't float. Oh, well, this is lighter than you think. Now, it's about a direct authority. It's about a direct authority. It's about a direct authority. And you know, it pays a couple of pennies on the inner tube. Now, it carries things. There are things on the inner tube. And it floats. Justice Kagan, I think we could imagine all kinds of determinous types of hypotheticals that would satisfy the basic criteria, but what the Court in Stewart said was practical capability is viewed in a real-world sense. And I'm not aware of any case, and they've certainly not pointed to anything that identifies anything with those kind of practical attributes that would be subject to litigation. Well, practical capability viewed in a real-world sense. You're talking about transportation. You're talking about things that were built for transportation, right? Yes, that is true in the sense that one of the purposes, as manifested through its physical characteristics, is the ability to be moved across water. And just as Mr. Loseman's Houseboat here was moved 200 miles in the first toadge after the hurricane wiped out every other vessel and the docks in the North Bay, a marina, and he had it towed with a speedboat 70 miles to the city of Riviera Beach. Those physical characteristics and attributes were recognized by the Court of Appeals when it applied the practical capability test. And it set on page 15a of the petition appendix that certainly living a domicile is a purpose of a floating home, but mobility is also a purpose. And then demonstrate that mobility here. Under your definition, how do you deal with Evansville? Evansville is a case with many layers, but let me just first start with the fact that the Court announced a practical capability test in Evansville itself. That is what it applied. It reviewed a district court record that had it found no practical capability on the basis of the driveways and the more permanent connections to the utility system of the city. And it reviewed that factual record for clear error, which, of course, it didn't find by-by-by-but you're basically saying we reached the wrong conclusion because the warthboat floated and it regularly was moved. And there was nothing to suggest that it couldn't carry people or things. It happened not to because they would empty it, I understand, before they moved it, but it could have. So if it was practically capable of floating, whether it was semi tied to land or not, it was released from land on somewhat of a regular basis. So are you suggesting that in Stewart, we changed the Evansville rule? No. In Stewart, you said what the holding of the case was, which was that it was not practically capable of movement at the time that it sank. Now, I would like to just step back for a second because I think Evansville needs to be understood in the time in which it was decided. At that time, many courts, including this one, at times, applied a snapshot test. What is happening to this particular watercraft at the moment in time where it annualed T-tortakers, where the contracting sews, and the like? This court subsequently disavowed the snapshot test, but in Stewart, what the court did, is to describe Evansville and Cope as cases about not practically capable of movement or carriage because of their connections to the land

. Oh, well, this is lighter than you think. Now, it's about a direct authority. It's about a direct authority. It's about a direct authority. And you know, it pays a couple of pennies on the inner tube. Now, it carries things. There are things on the inner tube. And it floats. Justice Kagan, I think we could imagine all kinds of determinous types of hypotheticals that would satisfy the basic criteria, but what the Court in Stewart said was practical capability is viewed in a real-world sense. And I'm not aware of any case, and they've certainly not pointed to anything that identifies anything with those kind of practical attributes that would be subject to litigation. Well, practical capability viewed in a real-world sense. You're talking about transportation. You're talking about things that were built for transportation, right? Yes, that is true in the sense that one of the purposes, as manifested through its physical characteristics, is the ability to be moved across water. And just as Mr. Loseman's Houseboat here was moved 200 miles in the first toadge after the hurricane wiped out every other vessel and the docks in the North Bay, a marina, and he had it towed with a speedboat 70 miles to the city of Riviera Beach. Those physical characteristics and attributes were recognized by the Court of Appeals when it applied the practical capability test. And it set on page 15a of the petition appendix that certainly living a domicile is a purpose of a floating home, but mobility is also a purpose. And then demonstrate that mobility here. Under your definition, how do you deal with Evansville? Evansville is a case with many layers, but let me just first start with the fact that the Court announced a practical capability test in Evansville itself. That is what it applied. It reviewed a district court record that had it found no practical capability on the basis of the driveways and the more permanent connections to the utility system of the city. And it reviewed that factual record for clear error, which, of course, it didn't find by-by-by-but you're basically saying we reached the wrong conclusion because the warthboat floated and it regularly was moved. And there was nothing to suggest that it couldn't carry people or things. It happened not to because they would empty it, I understand, before they moved it, but it could have. So if it was practically capable of floating, whether it was semi tied to land or not, it was released from land on somewhat of a regular basis. So are you suggesting that in Stewart, we changed the Evansville rule? No. In Stewart, you said what the holding of the case was, which was that it was not practically capable of movement at the time that it sank. Now, I would like to just step back for a second because I think Evansville needs to be understood in the time in which it was decided. At that time, many courts, including this one, at times, applied a snapshot test. What is happening to this particular watercraft at the moment in time where it annualed T-tortakers, where the contracting sews, and the like? This court subsequently disavowed the snapshot test, but in Stewart, what the court did, is to describe Evansville and Cope as cases about not practically capable of movement or carriage because of their connections to the land. In Evansville, the owner of the warthboat also owned the adjoining land and had control over the dock and built driveway so that trucks could come on and off and had an eight-inch concrete lining on the houseboat, which are not typically, sorry, on the warthboat, which are not typically attributes one would think of as ordinarily for the best. I've got stopped here with back at Stewart, practically capable of maritime transport. Now, those are words I thought you have to interpret with some degree of common sense, and the reason for that is because each of us can, of course, imagine all kinds of things from styrofoam sofas to just dozens of absurd things that have nothing to do with ships or vessels and really could be used theoretically to carry something on the water. So what we think of is that practical capability means that there must be, this must really have as a function, as one of its functions. I would like to say purpose, but some people apparently don't like that because it has some other implication that I don't understand. Okay, so call it the function or the capacity, and it really does as a significant matter of carrying things and not just accoutraments like nails in its walls, but things from place to place to some significant degree. Okay? So I've just taken the words of the test and through voice and trying to focus your mind. I said, you have to do that really as it has to be some significant degree there, which this one doesn't seem to have. All right, so you see what I'm trying to do, and really it's a way of getting you to respond to that. I think it certainly did have that. It had that capability, Justice Breyer, because it was actually moved on multiple cases. But it wasn't carrying things. It was carrying its personal effects. Well, that's true, and of course a Styrofoam sofa is carrying the holes, or it's carrying the, you know, the coffee can or something that's on top. But when you have a thing that carries itself, that isn't good enough. It has to be something to do with transporting a thing, transporting some stuff. It transported its computers, it transported its clothes, except for the fact that its guns were confiscated before the part of the house. That's what's part of a house. They're not part of the house. They're part of the personal effects, just as someone has personal effects in his or her dwelling. And when the Marshall toad it carried two people as part of the crew for the transit between the two countries. I think of what it's doing, and compare that with the Dredge. Every day the workmen get on, they go into the middle of Boston Harbor, and then they start to work. And they Dredge. And so you'd say, well, I see one of the purposes of this boat is to carry those people out there. Now, think of this one. This one is carrying things, but that which it carries is just what is part of a normal house, which has nothing to do with transporting things on water. Well, actually, I think Mr. Fisher conceded that if this had a motor, and it was carrying exactly the same personal effects, it would be a vessel. Okay

. In Evansville, the owner of the warthboat also owned the adjoining land and had control over the dock and built driveway so that trucks could come on and off and had an eight-inch concrete lining on the houseboat, which are not typically, sorry, on the warthboat, which are not typically attributes one would think of as ordinarily for the best. I've got stopped here with back at Stewart, practically capable of maritime transport. Now, those are words I thought you have to interpret with some degree of common sense, and the reason for that is because each of us can, of course, imagine all kinds of things from styrofoam sofas to just dozens of absurd things that have nothing to do with ships or vessels and really could be used theoretically to carry something on the water. So what we think of is that practical capability means that there must be, this must really have as a function, as one of its functions. I would like to say purpose, but some people apparently don't like that because it has some other implication that I don't understand. Okay, so call it the function or the capacity, and it really does as a significant matter of carrying things and not just accoutraments like nails in its walls, but things from place to place to some significant degree. Okay? So I've just taken the words of the test and through voice and trying to focus your mind. I said, you have to do that really as it has to be some significant degree there, which this one doesn't seem to have. All right, so you see what I'm trying to do, and really it's a way of getting you to respond to that. I think it certainly did have that. It had that capability, Justice Breyer, because it was actually moved on multiple cases. But it wasn't carrying things. It was carrying its personal effects. Well, that's true, and of course a Styrofoam sofa is carrying the holes, or it's carrying the, you know, the coffee can or something that's on top. But when you have a thing that carries itself, that isn't good enough. It has to be something to do with transporting a thing, transporting some stuff. It transported its computers, it transported its clothes, except for the fact that its guns were confiscated before the part of the house. That's what's part of a house. They're not part of the house. They're part of the personal effects, just as someone has personal effects in his or her dwelling. And when the Marshall toad it carried two people as part of the crew for the transit between the two countries. I think of what it's doing, and compare that with the Dredge. Every day the workmen get on, they go into the middle of Boston Harbor, and then they start to work. And they Dredge. And so you'd say, well, I see one of the purposes of this boat is to carry those people out there. Now, think of this one. This one is carrying things, but that which it carries is just what is part of a normal house, which has nothing to do with transporting things on water. Well, actually, I think Mr. Fisher conceded that if this had a motor, and it was carrying exactly the same personal effects, it would be a vessel. Okay. How do you then distinguish? I see where you're just saying my distinction is not going to work. And so then I'd ask you to say, what one you want to come up with, that will get rid of all the absurd examples that are lurking in the back of my mind, which I will avoid. And yet include. I think that a vessel that has practical capability, a watercraft that has practical capability to float, move and carry goods or people. The floating sofa, the floating sofa. It's somebody's retire, he likes to see it, float around in the water. And you know, and it carries a cushion. I mean, really, that's absurd. And so how do you distinguish, I gave you an absurd example. I think I've given up the absurd typos because there are no litigation on. Who's supposed to, Mr. Frederick, this? Suppose we had a trial on the question of whether these floating homes or this floating home was a vessel. And we found out that actually 99 percent of people who buy floating homes move it exactly once. They purchase the floating home and then they move it to the place where they want the home to be and then it sits there. And this was just a clear evidence that, you know, except if there's a hurricane or a tornado, people do not move floating homes. They buy it, they move it to where they want to live and then it sits. In that case, do you think the thing is a vessel? Yes. If it has the practical capability, that's what the statute says, Justice Kagan. It depends on if you want to rewrite the statute to have subjective intent. If you are reading the statute, you're reading the statute as if it says something can be transported over water. But the statute doesn't say that. It says something can be used or capable of being used as a means of transportation on water. So the question is whether this thing is transporting other things over water and whether that's its function. And in my hypothetical, it's not its function. Its function is to serve as a house. That house happens to be on water, but it's just a house. Justice Kagan, the fact that a vessel only moves once doesn't mean that it's not a vessel if it has, if it meets the attributes of the statute, has explained by this Court and Stewart a practical capability. The Titanic, of course, is a perfect example of that. The fact that a person may choose mobility as one of the attributes and not exercise that attribute, of course, goes to subjective intent. And as the Maritime Law Association's brief points out here, you do not want to apply an intent standard that goes to what the owner intends to, which function, the owner intends to exercise because that leads to manipulation

. How do you then distinguish? I see where you're just saying my distinction is not going to work. And so then I'd ask you to say, what one you want to come up with, that will get rid of all the absurd examples that are lurking in the back of my mind, which I will avoid. And yet include. I think that a vessel that has practical capability, a watercraft that has practical capability to float, move and carry goods or people. The floating sofa, the floating sofa. It's somebody's retire, he likes to see it, float around in the water. And you know, and it carries a cushion. I mean, really, that's absurd. And so how do you distinguish, I gave you an absurd example. I think I've given up the absurd typos because there are no litigation on. Who's supposed to, Mr. Frederick, this? Suppose we had a trial on the question of whether these floating homes or this floating home was a vessel. And we found out that actually 99 percent of people who buy floating homes move it exactly once. They purchase the floating home and then they move it to the place where they want the home to be and then it sits there. And this was just a clear evidence that, you know, except if there's a hurricane or a tornado, people do not move floating homes. They buy it, they move it to where they want to live and then it sits. In that case, do you think the thing is a vessel? Yes. If it has the practical capability, that's what the statute says, Justice Kagan. It depends on if you want to rewrite the statute to have subjective intent. If you are reading the statute, you're reading the statute as if it says something can be transported over water. But the statute doesn't say that. It says something can be used or capable of being used as a means of transportation on water. So the question is whether this thing is transporting other things over water and whether that's its function. And in my hypothetical, it's not its function. Its function is to serve as a house. That house happens to be on water, but it's just a house. Justice Kagan, the fact that a vessel only moves once doesn't mean that it's not a vessel if it has, if it meets the attributes of the statute, has explained by this Court and Stewart a practical capability. The Titanic, of course, is a perfect example of that. The fact that a person may choose mobility as one of the attributes and not exercise that attribute, of course, goes to subjective intent. And as the Maritime Law Association's brief points out here, you do not want to apply an intent standard that goes to what the owner intends to, which function, the owner intends to exercise because that leads to manipulation. And the question is, the City's position, it is whatever we want it to be, that is the first time Lowe's one was sued by the City. It was not under admiralty jurisdiction. It was a plain old landlord tenant sued in State Court, right? Yes, but there are some exceptions, and if I'll let you finish your question. Well, my question is, is it a vessel when you wanted to be and just an ordinary landlord tenant situation when you wanted to be that way? No, I would answer that question as no. But let's take this very, this very incident that is he failed to comply with the revised rules and he was behind in his payment of dockage fees. Could the City have brought that case in an ordinary State Court for the arrears? No. Why not? Because it's a vessel and the exclusive admiralty jurisdiction in the United States Court means that it has to be litigated in the United States courts. What if that's why in the first one, if I could just explain about the State Court because I think that there's some this apprehension about what happened? His dog was not complying with the ordinances and he was not complying with the City ordinances. That's why the City brought the in-personam action against him in State Court. There was no admiralty basis there. He was still paying all of his dockage services and fees. It became an enramb action when the lien was not being discharged through his payment on the dockage fees and the City had a basis under the Wetslip agreement to assert a maritime lien which is a classic admiralty action under Federal jurisdiction. So they are very different actions. Under the State Court action, he could still stay at the marina, but he had to be on a house boat that complied with the marinas rules. He had two house boats at the marina. And this one was not in compliance and that is why the City brought action against it. It was the only one of the 500-plus vessels and boats in this marina that wasn't in compliance with the rules. We want, I suppose, to give the courts of appeals a test that works. See if this sums up your argument or your position. You look to see the objective characteristic, the physical capacity of the structure. And then you look not to purpose, but to its objective function. Does it carry goods under the statute? And then I suppose you could under that say that this is a vessel, but that this presumption is overcome if it's permanently moored in a way the Evansville Dredge was. Is that your argument? I think that sums up in a nutshell what we would regard as a proper statement of a law of what this court has already said. And that is that if it's got practical capability, those practical characteristics, Justice Kennedy, will manifest itself in the functions. If somebody wants to buy a domicile on land, one buys a house or a condo, if you buy a floating home that has the attribute, the physical characteristics of floating, moving and carriage. That's where that's exactly. I mean, I think that works pretty well and you think that works pretty well, but I don't agree with you at the moment hypothetically. So something's wrong somewhere. And what I'm thinking is that you could have very odd things, you know, like an advertising sign. It's floating advertising sign

. And the question is, the City's position, it is whatever we want it to be, that is the first time Lowe's one was sued by the City. It was not under admiralty jurisdiction. It was a plain old landlord tenant sued in State Court, right? Yes, but there are some exceptions, and if I'll let you finish your question. Well, my question is, is it a vessel when you wanted to be and just an ordinary landlord tenant situation when you wanted to be that way? No, I would answer that question as no. But let's take this very, this very incident that is he failed to comply with the revised rules and he was behind in his payment of dockage fees. Could the City have brought that case in an ordinary State Court for the arrears? No. Why not? Because it's a vessel and the exclusive admiralty jurisdiction in the United States Court means that it has to be litigated in the United States courts. What if that's why in the first one, if I could just explain about the State Court because I think that there's some this apprehension about what happened? His dog was not complying with the ordinances and he was not complying with the City ordinances. That's why the City brought the in-personam action against him in State Court. There was no admiralty basis there. He was still paying all of his dockage services and fees. It became an enramb action when the lien was not being discharged through his payment on the dockage fees and the City had a basis under the Wetslip agreement to assert a maritime lien which is a classic admiralty action under Federal jurisdiction. So they are very different actions. Under the State Court action, he could still stay at the marina, but he had to be on a house boat that complied with the marinas rules. He had two house boats at the marina. And this one was not in compliance and that is why the City brought action against it. It was the only one of the 500-plus vessels and boats in this marina that wasn't in compliance with the rules. We want, I suppose, to give the courts of appeals a test that works. See if this sums up your argument or your position. You look to see the objective characteristic, the physical capacity of the structure. And then you look not to purpose, but to its objective function. Does it carry goods under the statute? And then I suppose you could under that say that this is a vessel, but that this presumption is overcome if it's permanently moored in a way the Evansville Dredge was. Is that your argument? I think that sums up in a nutshell what we would regard as a proper statement of a law of what this court has already said. And that is that if it's got practical capability, those practical characteristics, Justice Kennedy, will manifest itself in the functions. If somebody wants to buy a domicile on land, one buys a house or a condo, if you buy a floating home that has the attribute, the physical characteristics of floating, moving and carriage. That's where that's exactly. I mean, I think that works pretty well and you think that works pretty well, but I don't agree with you at the moment hypothetically. So something's wrong somewhere. And what I'm thinking is that you could have very odd things, you know, like an advertising sign. It's floating advertising sign. They tote around. Is that floating advertising sign a vessel? No, it doesn't carry goods. It does carry, say, the eyes on the figure which might move around. And then it does, Justice Kennedy said, carrying goods. All right. Does this structure, this houseboat, have a function of carrying goods? You're tempted to say yes because his personal effects are in it. I'm tempted to say no because there's nothing special about those personal effects that isn't exactly similar to their being in a similar structure on land. That's where I'm wondering if there's a distinction. Do you see what I was bothering? I agree with Justice Breyer. There's no basis. I mean, with all of your respect, there's no basis in your cases to hold that there is something about transportation that makes it somehow uniquely not a cold or maritime as a person. No, it's not in transit. How old effects are other goods or services or people that are transported over land? And that's why when the normal definition of transportation is to convey a person or a thing from one place to another, that's perfectly satisfied under the fact of this case. And it's an undisputed record as the petitioner says on page 27 of the Serpentition. They ask for a cert here to, to, for you to decide whether Mr. Loseman's state of mind about his indefinite mooring is somehow relevant to the definition of a vessel. It clearly is. The problem is the list of absurdities that they point to, not the least of which is a dry dot, which you talk about whether it's permanently moored or not, but most dry dots are held in place by, you know, heavy ropes, but you can cut them and you can stick something on them and they can float away under. So how do you, I don't accept the premise of your argument, the dry dots with the John Femile are anchored to the bottom so that they can stay in one place and they don't carry anything, so they don't meet the part of the test that requires carriage. So what are you, physical structure, and the other examples your adversary gave, is a trampoline that floats on water, capable of moving, it's moving the trampoline. I don't think it's practically capable of carrying anything. It's carrying the trampoline. And again, you know, so is the difference whether I attach something permanently or temporarily to the top of the floating thing, the floating board, the floating whatever? Well, it would not be subject to a toage. Here, the houseboat had, this is important because the houseboat under the testimony Mr. Loseman, the list that it had trial, had four towing cleats that were welded into the structure of his houseboat so that it could be towed without torquing and twisting the houseboat and causing it to sink. The hypotheticals that the other side has suggested don't have that additive feature of towing cleats that are used for the purpose of being able to convey the houseboat over the years. So your example of the towing cleats highlights one of the difficulties I have, one because obviously the question is, well, what if they didn't have the towing cleats? And then what if they had the towing cleats and then took them off? What if they were temporary towing cleats? One of the things, this is a jurisdictional statute. And we like jurisdictional statutes to be clear and easy of application. Why do you think your test is easier than your friend's test? Because the physical characteristics of this houseboat all point to the attributes of being a vessel. It floats, it moves, it carries

. They tote around. Is that floating advertising sign a vessel? No, it doesn't carry goods. It does carry, say, the eyes on the figure which might move around. And then it does, Justice Kennedy said, carrying goods. All right. Does this structure, this houseboat, have a function of carrying goods? You're tempted to say yes because his personal effects are in it. I'm tempted to say no because there's nothing special about those personal effects that isn't exactly similar to their being in a similar structure on land. That's where I'm wondering if there's a distinction. Do you see what I was bothering? I agree with Justice Breyer. There's no basis. I mean, with all of your respect, there's no basis in your cases to hold that there is something about transportation that makes it somehow uniquely not a cold or maritime as a person. No, it's not in transit. How old effects are other goods or services or people that are transported over land? And that's why when the normal definition of transportation is to convey a person or a thing from one place to another, that's perfectly satisfied under the fact of this case. And it's an undisputed record as the petitioner says on page 27 of the Serpentition. They ask for a cert here to, to, for you to decide whether Mr. Loseman's state of mind about his indefinite mooring is somehow relevant to the definition of a vessel. It clearly is. The problem is the list of absurdities that they point to, not the least of which is a dry dot, which you talk about whether it's permanently moored or not, but most dry dots are held in place by, you know, heavy ropes, but you can cut them and you can stick something on them and they can float away under. So how do you, I don't accept the premise of your argument, the dry dots with the John Femile are anchored to the bottom so that they can stay in one place and they don't carry anything, so they don't meet the part of the test that requires carriage. So what are you, physical structure, and the other examples your adversary gave, is a trampoline that floats on water, capable of moving, it's moving the trampoline. I don't think it's practically capable of carrying anything. It's carrying the trampoline. And again, you know, so is the difference whether I attach something permanently or temporarily to the top of the floating thing, the floating board, the floating whatever? Well, it would not be subject to a toage. Here, the houseboat had, this is important because the houseboat under the testimony Mr. Loseman, the list that it had trial, had four towing cleats that were welded into the structure of his houseboat so that it could be towed without torquing and twisting the houseboat and causing it to sink. The hypotheticals that the other side has suggested don't have that additive feature of towing cleats that are used for the purpose of being able to convey the houseboat over the years. So your example of the towing cleats highlights one of the difficulties I have, one because obviously the question is, well, what if they didn't have the towing cleats? And then what if they had the towing cleats and then took them off? What if they were temporary towing cleats? One of the things, this is a jurisdictional statute. And we like jurisdictional statutes to be clear and easy of application. Why do you think your test is easier than your friend's test? Because the physical characteristics of this houseboat all point to the attributes of being a vessel. It floats, it moves, it carries. It's not, it doesn't have the thing that makes something look most like a boat in my view is a raked bow. That tells you that that's what they want to use it for to move through the water. This is straight up and down. Well, Mr. Chiefs. It doesn't have what are the things called on the side, the elevated sides that you'd look for in a boat. And we would submit that Congress did not intend that you know it when you see it test. House barges, barges have been vessels since the time of Cleopatra. The fact that it is flat bottomed and it floats and it moves and it carries things does not make it a lot of sense. This is kind of an idiosyncratic case. There are many cases, I think, in the courts now about floating casinos. I take it on your definition, the floating casino would be a vessel subject to maritime jurisdiction. Yes, unless it has a physical impediment that takes it out of one of the three attributes that just make it a vessel. As long as the vessel stays in one place and the gambling goes on in one place, then it may be towed to a different location and it stays there. You say because it is able to be moved from one place to another, it qualifies as a vessel. Yes. Even if it's rather permanently moored with the, like the intrepid on the Hudson River, it's about an aircraft carrier, but it's really fixed in there with regular walkways and so forth. It's very, if it would cause a lot of work in order to move it. We suggest that the way the courts should think about that problem is as a physical impediment. Our physical impediments preclude its moat movement or its carriage or its flow. So, Mr. Frederick, if that's the case, then your test really comes down to how securely is something fastened. I mean, you have to deal with Evansville's worthboat. You have to deal with cages dry dock and you have to deal with all these floating casinos and restaurants. And you're saying that in all these cases we're supposed to look to, is it a ropa, is it a cable? How many cables? How quickly can it be disengaged? And that that's going to end up being the test that you would have us adopt, which is how easy it is to get out of the port. I think that that's a fair way to view it, Justice Kagan, and it's a perfectly appropriate one. I mean, the bell of Orleans, in this case. That clearly does become a jury question, a question of fact, for everything, right? You know, are there six cables or the nine cables? What are they made of? You know, how long is it going to take to rip up the, the, the, the IBM's, whatever? Well, I think that as a practical matter, this arises in only a couple of years. There are a couple of instances and those are the casino boats, many of which were vessels and they traverse the rivers, allowing people to gamble because that's how state laws required them to perform. And they have since stopped trying to be vessels because of state law changes that they were, that they were able to make

. It's not, it doesn't have the thing that makes something look most like a boat in my view is a raked bow. That tells you that that's what they want to use it for to move through the water. This is straight up and down. Well, Mr. Chiefs. It doesn't have what are the things called on the side, the elevated sides that you'd look for in a boat. And we would submit that Congress did not intend that you know it when you see it test. House barges, barges have been vessels since the time of Cleopatra. The fact that it is flat bottomed and it floats and it moves and it carries things does not make it a lot of sense. This is kind of an idiosyncratic case. There are many cases, I think, in the courts now about floating casinos. I take it on your definition, the floating casino would be a vessel subject to maritime jurisdiction. Yes, unless it has a physical impediment that takes it out of one of the three attributes that just make it a vessel. As long as the vessel stays in one place and the gambling goes on in one place, then it may be towed to a different location and it stays there. You say because it is able to be moved from one place to another, it qualifies as a vessel. Yes. Even if it's rather permanently moored with the, like the intrepid on the Hudson River, it's about an aircraft carrier, but it's really fixed in there with regular walkways and so forth. It's very, if it would cause a lot of work in order to move it. We suggest that the way the courts should think about that problem is as a physical impediment. Our physical impediments preclude its moat movement or its carriage or its flow. So, Mr. Frederick, if that's the case, then your test really comes down to how securely is something fastened. I mean, you have to deal with Evansville's worthboat. You have to deal with cages dry dock and you have to deal with all these floating casinos and restaurants. And you're saying that in all these cases we're supposed to look to, is it a ropa, is it a cable? How many cables? How quickly can it be disengaged? And that that's going to end up being the test that you would have us adopt, which is how easy it is to get out of the port. I think that that's a fair way to view it, Justice Kagan, and it's a perfectly appropriate one. I mean, the bell of Orleans, in this case. That clearly does become a jury question, a question of fact, for everything, right? You know, are there six cables or the nine cables? What are they made of? You know, how long is it going to take to rip up the, the, the, the IBM's, whatever? Well, I think that as a practical matter, this arises in only a couple of years. There are a couple of instances and those are the casino boats, many of which were vessels and they traverse the rivers, allowing people to gamble because that's how state laws required them to perform. And they have since stopped trying to be vessels because of state law changes that they were, that they were able to make. And so the question is a practical matter is, are there physical impediments to the ability of that boat to, to use the capability to move? The star of India, which was referenced in the bell of Orleans case, was not, was a vessel, a sailing vessel from the 19th century. In 1926, they took it out of commission as a sailing vessel and they towed it to San Diego where it sat for 50 years tied to the dock. And for the bicentennial, they decided, let's get the boat out and sail it and they sailed it for the, for the bicentennial. The ninth circuit held, that's a vessel because it has the capability of being used as a vessel. And the fact that something is more for a long time, if it has the physical attributes to be a vessel, it is a vessel. The United States, the U.S.S. Constitution, the famous U.S. Constitution would be shot to have heard Mr. Ganon statement about vessel because there are 200 Navy service members who service the U.S.S. Constitution and take it out periodically for sail. There are any problem here, which I think may be, the Coast Guard and the other people who are responsible for vessels say, once we start thinking that everything in the house is a vessel, I overstate, we're going to have it impossible time doing our job. I mean, you know, you're going to see some kind of a log next to a beach somewhere and somebody's going to start calling it a vessel. We've got to limit this somehow to things that really are used as vessels. Yes. Is that a problem and if so, how do you deal with it? If it were a problem, the Coast Guard would have signed the Solicitor General's brief in this case, which they have done in other cases in which transportation and vessel status have been relevant, like in Spreets and Mvers. Mercury, Marine, United States versus Locke, in which the Coast Guard is on the surface. This is not very compelling in this case because they have regulations that pretty much echo what the Solicitor General is saying. So it's not as if they were going to take a different position. The Solicitor General is basically saying, follow the Coast Guard regulations. And the statute underlying those regulations, Justice Sotomayor, is found at 46 U.S. C. 4302 and it provides the Secretary very broad discretion on what to include within the regulations and what not to. After this court decided, the Stewart case, the Secretary suspended many regulations for dockside vessels until the Coast Guard could issue new regulations. There is a hint, there is a suggestion that there might be a problem, but there's not anything that's really given in practical terms

. And so the question is a practical matter is, are there physical impediments to the ability of that boat to, to use the capability to move? The star of India, which was referenced in the bell of Orleans case, was not, was a vessel, a sailing vessel from the 19th century. In 1926, they took it out of commission as a sailing vessel and they towed it to San Diego where it sat for 50 years tied to the dock. And for the bicentennial, they decided, let's get the boat out and sail it and they sailed it for the, for the bicentennial. The ninth circuit held, that's a vessel because it has the capability of being used as a vessel. And the fact that something is more for a long time, if it has the physical attributes to be a vessel, it is a vessel. The United States, the U.S.S. Constitution, the famous U.S. Constitution would be shot to have heard Mr. Ganon statement about vessel because there are 200 Navy service members who service the U.S.S. Constitution and take it out periodically for sail. There are any problem here, which I think may be, the Coast Guard and the other people who are responsible for vessels say, once we start thinking that everything in the house is a vessel, I overstate, we're going to have it impossible time doing our job. I mean, you know, you're going to see some kind of a log next to a beach somewhere and somebody's going to start calling it a vessel. We've got to limit this somehow to things that really are used as vessels. Yes. Is that a problem and if so, how do you deal with it? If it were a problem, the Coast Guard would have signed the Solicitor General's brief in this case, which they have done in other cases in which transportation and vessel status have been relevant, like in Spreets and Mvers. Mercury, Marine, United States versus Locke, in which the Coast Guard is on the surface. This is not very compelling in this case because they have regulations that pretty much echo what the Solicitor General is saying. So it's not as if they were going to take a different position. The Solicitor General is basically saying, follow the Coast Guard regulations. And the statute underlying those regulations, Justice Sotomayor, is found at 46 U.S. C. 4302 and it provides the Secretary very broad discretion on what to include within the regulations and what not to. After this court decided, the Stewart case, the Secretary suspended many regulations for dockside vessels until the Coast Guard could issue new regulations. There is a hint, there is a suggestion that there might be a problem, but there's not anything that's really given in practical terms. Well, but I mean, there are some easy things to visualize as a problem. If this is a vessel, then the made that comes on twice a week is a semen under the Jones Act, right? No. And the reason why is because as this court recognized in Stewart, the end navigation requirement is something that has been used for limiting the reach of Jones Act semen in those circumstances in which a vessel is taken out of navigation. So I think that it would be appropriate in a case like this court. This is a classic instance of a maritime lean. Doc, I'm sorry, this is taken out of navigation, but not every time it's Doc. No, but no. And in fact, I think the question of who is a Jones Act semen is a different test that this court last discussed in the Chandra's case in terms of its substantial connection to the mission of the vessel. And that I would, I think that the court could safely leave the Jones Act issues aside because they bring in a entirely different regime that focuses on the workers connection to the vessel as opposed to the definition of vessel itself. The definition of vessel itself here is as Justice Scalia pointed out, part of the Dictionary Act, and it is something that does apply more broadly. But as we briefed in this case, there are two provisions that take that definition and then they add an intent requirement as specific language in different parts so that if that idea of function or intent or purpose is something that is germane to that particular statutory function, then that is a question that becomes a question for jurisdiction. But I'd also like to point out that both I think the District Court and the Court of Appeals here assumed that there was jurisdiction here because there had not been evidence that contested the basic principles that the City brought when it profiled this in-rem action. And because the case then moved into the merits phase, the District Judge here initially denied the motion to dismiss for one of jurisdiction without prejudice. And then as the evidence came in, revisited the question to provide a fuller explanation. And at that time, made the ruling that Mr. Lozeman had not put in record evidence that affected the practical capability of the test. The only thing Mr. Lozeman argued in the Court of Appeals as a reason for error was that because he intended to live there indefinitely, even though he had no contractual or property right to do so, and he had signed a wet slip agreement that provided the Marina complete discretion to move his Houseboat within any of the slips or to order the Houseboat to leave on three days notice. The question of whether or not there was any record evidence on practical capability got to the 11th Circuit, and the 11th Circuit in applying a practical capability test said the things that Mr. Lozeman had argued he didn't offer record evidence. So, Justice Kennedy, to your point, I think that respect to the Court of Appeals and how it did do its job here is an important facet of the cases it comes here. They initially asked you in the Serpentation grant Serpent because the 5th Circuit and the 7th Circuit have applied an owner's intent test. They've not defended that test, and it is abjectly erroneous because you can't have vessel status be so easily manipulated by an individual's intent. And now by trying to morph it into some kind of function or objective purpose standard, they've essentially done exactly what the 11th Circuit said they had offered no evidence in the district court to try to prove if there are no further questions. Thank you, Council. Mr. Fisher, you have three minutes left. Thank you. I think Mr. Frederick's best argument that I've heard and some of this Court has echoed it is that this is a vessel because it was moved around and it carried his personal effects

. Well, but I mean, there are some easy things to visualize as a problem. If this is a vessel, then the made that comes on twice a week is a semen under the Jones Act, right? No. And the reason why is because as this court recognized in Stewart, the end navigation requirement is something that has been used for limiting the reach of Jones Act semen in those circumstances in which a vessel is taken out of navigation. So I think that it would be appropriate in a case like this court. This is a classic instance of a maritime lean. Doc, I'm sorry, this is taken out of navigation, but not every time it's Doc. No, but no. And in fact, I think the question of who is a Jones Act semen is a different test that this court last discussed in the Chandra's case in terms of its substantial connection to the mission of the vessel. And that I would, I think that the court could safely leave the Jones Act issues aside because they bring in a entirely different regime that focuses on the workers connection to the vessel as opposed to the definition of vessel itself. The definition of vessel itself here is as Justice Scalia pointed out, part of the Dictionary Act, and it is something that does apply more broadly. But as we briefed in this case, there are two provisions that take that definition and then they add an intent requirement as specific language in different parts so that if that idea of function or intent or purpose is something that is germane to that particular statutory function, then that is a question that becomes a question for jurisdiction. But I'd also like to point out that both I think the District Court and the Court of Appeals here assumed that there was jurisdiction here because there had not been evidence that contested the basic principles that the City brought when it profiled this in-rem action. And because the case then moved into the merits phase, the District Judge here initially denied the motion to dismiss for one of jurisdiction without prejudice. And then as the evidence came in, revisited the question to provide a fuller explanation. And at that time, made the ruling that Mr. Lozeman had not put in record evidence that affected the practical capability of the test. The only thing Mr. Lozeman argued in the Court of Appeals as a reason for error was that because he intended to live there indefinitely, even though he had no contractual or property right to do so, and he had signed a wet slip agreement that provided the Marina complete discretion to move his Houseboat within any of the slips or to order the Houseboat to leave on three days notice. The question of whether or not there was any record evidence on practical capability got to the 11th Circuit, and the 11th Circuit in applying a practical capability test said the things that Mr. Lozeman had argued he didn't offer record evidence. So, Justice Kennedy, to your point, I think that respect to the Court of Appeals and how it did do its job here is an important facet of the cases it comes here. They initially asked you in the Serpentation grant Serpent because the 5th Circuit and the 7th Circuit have applied an owner's intent test. They've not defended that test, and it is abjectly erroneous because you can't have vessel status be so easily manipulated by an individual's intent. And now by trying to morph it into some kind of function or objective purpose standard, they've essentially done exactly what the 11th Circuit said they had offered no evidence in the district court to try to prove if there are no further questions. Thank you, Council. Mr. Fisher, you have three minutes left. Thank you. I think Mr. Frederick's best argument that I've heard and some of this Court has echoed it is that this is a vessel because it was moved around and it carried his personal effects. The difficulty is that argument runs absolutely headlong into Evansville and Roper. It cannot be squared with those cases and I would be willing to rest my entire case on simply this Court reading and applying those cases. In Evansville, this Court dealt with something that carried around the effects of a business office. In Roper, this Court dealt with something that carried around grain and was far more seeworthy than the structure in this case. Both instances, the Court said, they're not vessels because the function was not to carry those things around. It was merely the were merely incidental relocations. Now, so that for that reason, the 11th Circuit simply cannot be right when it says that function is irrelevant. And the City can't be right on its test either. The only way the City has proposed to deal with those cases is to look at how securely the structure is fastened. And Justice Kagan, you're exactly right. If you want a recipe for disaster under a stickional questions, start asking whether it's chains or ropes. And not only that, if you want something that's utterly manipulable, just tell the yacht owner who has his yacht down in the harbor that all he has to do is hook it up to the dock with chains instead of ropes and now he's out of maritime jurisdiction. So this Court's cases for almost a century have applied the exact test we're asking this Court to apply. And even if you're not 100 percent persuaded that that's what the statute is best read as doing, that is what we have done for over 100 years. And that is how maritime law has built up and guaranteed on those understandings. And it's not just the questions we've been talking today, it's employment law, tort law, all the rest are built on this test and we're asking this Court simply to reaffirm what it's done in the past. And so I think that leaves the question of when you know the 11th Circuit applied the wrong test and you know the City's test can't be right. Do you vacate or do you simply reverse? And we think in Justice Kennedy that we think you can simply reverse. You have everything in the record you need most notably in the surveyors report. And you can look at four things. Look at the materials used, the shape of the structure, its equipment and the utilities. The materials used were plywood and ordinary land based structures. That was used in the Higgins Boats in World War II. I'm not saying any of these are determined at Mr. Chief Justice but it's a totality that tells you what it is. And the next thing is the shape, exactly as you refer, this is a rectangle that has its 10 inches under the water is not meant to be moved around. Look at its features. It has French doors on three sides, a few feet above the water line. That's not what a vessel had not how a vessel is designed. And finally its utilities

. Again, at Joint Appendix 40 for example, it says this thing has no batteries. It is utterly dependent on being hooked up to land. That is the only way it can function. So if this Court does nothing else between now and casting its vote and running its opinion, revisit this Court's prior cases and reassert the rule that this Court has always applied. Thank you, Council. Council, the case is submitted