New Orleans Maritime Law
The Admiralty Law Institute runs from March 11-13 in New Orleans.

March 11, 2015, marked the first day of the 25th Biennial Admiralty Law Institute. Held at Tulane University in New Orleans, the ALI is the oldest and largest continuing legal education program devoted entirely to maritime law. The theme of this year’s conference is “Symposium on Maritime Personal Injury and Death: Jurisdiction to Judgment,” and Wednesday’s presentations were certainly in keeping with that theme. Some highlights from ALI’s first day:

First up was a panel discussion of recent developments in the ancient law of maintenance and cure. The panel noted that, despite the many modern improvements to the seaman’s lot, such as union contracts, vacation allowances, and disability pensions, the entitlement to maintenance and cure remains diligently guarded by the courts. The panel also discussed developments in the case law, such as the inability of the employer to turn a blind eye to accessible evidence corroborating the maintenance and cure claim, the scope of the seaman’s duty to disclose a pre-existing condition, and latent illnesses of the seaman–a subject that pushes the limits of the course and scope analysis.

Another topic up for discussion was cruise ships. The discussion was divided into two parts. First, regulation and compliance, followed by passenger and crew claims. A major topic of discussion was recent developments in the 11th Circuit regarding ship’s physicians. In the 5th Circuit the law remains that a ship’s physician, like a concessionaire, is not an employee or agent of the ship and thus no right of action exists against the shipowner for the medical malpractice or negligence of the on-board physician. As has been stated more often than once, ships are not floating hospitals. However, obtaining personal jurisdiction over the ship’s doctor in such cases is nearly impossible, so aggrieved parties are often left with no avenue of recovery. It seems the law is changing in the 11th Circuit, with a recent case holding the shipowner liable on an apparent agency theory.

Wednesday’s other presentations addressed attorney-client privilege and the admiralty practitioner, vessel status and jurisdiction (which included a very interesting discussion of the Lozman case) and removal of maritime cases. All presentations were followed by lively, and occasionally heated, questions and comments from the attendees. The day was capped off with a very well-attended cocktail reception at the lovely New Orleans Board of Trade.

Thursday’s topics include punitive damages, arbitration and mediation of maritime disputes, and litigating maritime disasters.

New Orleans Maritime Attorney Laura Avery


Laura E. Avery
is a member of the Admiralty Law Institute’s Young Lawyer Planning Committee and an associate in the New Orleans office of King, Krebs & Jurgens. She is licensed to practice in Louisiana, and practices primarily in the areas of maritime personal injury, maritime contract disputes, casualty defense and commercial litigation. 

Supreme Court of the United States
The Supreme Court of the United States may soon be deciding the definition of a vessel.

The very question of what makes a structure a “vessel”  under Section 3 of the Rules of Construction Act, 1 U.S.C. §3 is before the United States Supreme Court in City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F. 3d 1259 (11th Cir. 2011). In Part 1 of this blog post, we looked at the position of the owner of the alleged vessel, who argued that use and intention should be considered and that a watercraft like his floating house should not be considered a vessel. The Eleventh Circuit, however, ruled otherwise.

In determining that the floating house was a vessel, the Eleventh Circuit distinguished and disagreed with jurisprudence from the Fifth and Seventh Circuits. According to the Eleventh Circuit, the Fifth and Seventh Circuits “focus on the intent of the ship owner rather than whether the boat has been ‘rendered practically incapable of transportation or movement.’” Compare Board of Commissioners of the Orleans Levee District v. M/V Belle of Orleans, 535 F.3d 1299 (11th Cir. 2008) with Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir. 1995); Tagliere v. Harrah’s Ill. Corp., 445 F.3d 1012 (7th Cir. 2006). The Eleventh Circuit submitted that by injecting the owner’s intention into determining whether a floating structure was a vessel, the Fifth and Seventh Circuits have deviated from the United States Supreme Court’s decision in Stewart v. Dutra Construction Company, 543 U.S. 481 (2005).

In the amicus briefs filed by the National Marine Bankers Association and numerous maritime plaintiff attorneys, it was argued that the Eleventh Circuit’s decision should be upheld, and they too criticized the jurisprudence of the Fifth and Seventh Circuits. As argued by National Marine Bankers Association, under the Fifth and Seventh Circuits’ jurisprudence, “a once-valid marine security could at a later date be adversely affected because the craft is no longer deemed a vessel” by its owner, which would create uncertainty for lenders and banks. The plaintiff’s attorneys also supported the Eleventh Circuit’s decision as it potentially could expand admiralty jurisdiction to include, among other things, floating casinos, and other floating offshore installations.

The outcome of this case may have far reaching implications likely broader than those briefed, including whether the courts would revisit whether certain floating offshore installations used in the petroleum industry are vessels. That is, if the matter is decided at all. The U.S. Solicitor General has argued that the case is moot as the floating houseboat at issue has already been destroyed, and the Supreme Court has requested the parties further brief that issue. Stay tuned.

A feisty dachsund and its owner, Fane Lozman, have stirred up troubled waters regarding the definition of a “vessel” in City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F. 3d 1259 (11th Cir. 2011). That case, which is now before the 2012–2013 session of the United States Supreme Court, started out with the City of Riviera Beach, Florida, attempting to evict Mr. Lozman and his floating home from the city’s marina because, among other things, he refused to keep his dog—a small Dachshund—muzzled.

The case may have far reaching implications. It has attracted interest and amicus briefs from the federal government, numerous floating home owners and their associations, lawyers, law professors, the Marine Bankers Association, carpenters, and owners and operators of riverboat casinos, all of whom claim they will be affected by the Supreme Court’s decision. In a two-part blog post, Offshore Winds will look at both sides of this argument over the definition of “vessel.”

The City of Riviera Beach claims Mr. Lozman’s structure is a vessel and brought an in rem proceeding against it. Mr. Lozman disputed that claim. The position of Mr. Lozman, along with the American Gaming Association, the carpenters, certain lawyers, and the floating homeowners, was that in determining whether a structure was a “vessel” under Section 3 of the Rules of Construction Act, 1 U.S.C. §3, the Court must take into account practical considerations such as historical use, its current use, and its reasonable intended use for the future. The matter is being watched closely within the Fifth and Eleventh Circuits, where employees of semi-permanently moored riverboat casinos are subject to workmen’s compensation laws, not federal maritime law. Additionally, floating homeowners argue that expanding the definition of vessel to include their floating homes would subject them to new federal laws, including maritime liens, which would frustrate certain local regulations. They argue that practically their homes are a mere extension of the land, and should be treated as such in the courts.

The United States Court of Appeals for the Eleventh Circuit agreed with the City of Riviera, disagreeing with jurisprudence from the Fifth and Seventh Circuits defining what is a vessel. In Part 2, we will look at why that Court held Mr. Lozman’s floating home was a vessel.