As we have noted in previous installments of this column, marina tenants do not enjoy the same legal protections that apply to tenants of apartments and other residential dwellings (see, for example, “Do Liveaboard Boaters Receive Fair Housing Law Protection?” in The Log, Sept. 15, 2011). This is due, in large part, to the nature of the tenancy. Marina tenants do not rent a residence, even if they live aboard the boat. In fact, they typically own the boat, and they are instead simply renting a “parking space.” Evicting someone from a parking space is a lot different from evicting someone from a residence.
The case in Florida has attracted a lot of media attention because it involves a rather flamboyant software developer named Fane Lozman, who some say has earned a reputation as a “pain in the neck” to local government. His exploits include a successful fight with the city to stop the redevelopment of his marina, and that battle led to his eviction from the marina in 2006.
Lozman sued to stop the eviction, on the grounds that it was initiated in retaliation for his successful fight against the city. The jury agreed, and he was allowed to stay in the marina.
But that was only the first eviction. The Supreme Court case is based on a second eviction in 2009.
We should note that while tenant protection laws in Florida differ from those in California, California law would probably also protect someone in Lozman’s circumstances in the 2006 eviction.
Most states have laws that prohibit an eviction that is brought in retaliation for a tenant exercising a legal right. These laws extend beyond residential tenancies to include almost every rental arrangement. And since there is no federal maritime law that would protect a marina operator under those circumstances, the state anti-retaliation laws will generally apply to a slip rental agreement.
In 2007, Lozman’s marina sent notices to all of its tenants, advising of various rule changes and giving notice that the tenants would be required to sign new slip rental agreements. Lozman refused to sign the new agreement, and — after a long series of warnings — the marina finally brought an action in federal court in 2009 to arrest the vessel to foreclose on a maritime lien based on a maritime trespass.
The 2009 eviction was conducted under federal law, and it was based on the foreclosure of a maritime lien. Lozman’s defense was that his houseboat did not fall within the maritime law definition of a “vessel,” and as such the federal court lacked jurisdiction over the boat and the arrest should be vacated. The trial court and the appellate court both determined that the houseboat was a vessel, and Lozman’s appeal to the Supreme Court is based solely on this question.
As a side note, Lozman also claimed that this was again a retaliatory eviction. But since the marina applied the new rules to all tenants, the court ruled against him on this claim, as well.
In the beginning of this article, I noted that this case was unlikely to affect the rights of marina tenants, and this was based on the narrow scope of the Supreme Court case. Unless you have a boat that doesn’t fall within the usual definition of a vessel, this case will not affect you. However, notwithstanding the narrow scope of the case, it will have some interesting consequences — so, let’s look at it in a little more detail.
The question of whether a structure is a “vessel” is one of the core elements to determining whether federal admiralty or maritime jurisdiction exists over a dispute or a transaction. The parties look first to a federal statute, which provides that “the word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” (Chapter 1 U.S. Code, sec. 3).
Most courts have held that the primary inquiry in determining whether a craft is not a vessel is whether the craft was “rendered practically incapable of transportation or movement.”
In Lozman’s case, his houseboat was towed for hundreds of miles to his marina. Since it was obviously capable of movement on the water, the trial court and the appellate court held that it was a vessel.
However, several courts have held that the key question is whether it was designed for maritime transportation. This ignores the “capable of transportation” language in the statute, but those courts nonetheless focused on the design of the craft.
Since Lozman’s houseboat was designed primarily to sit at a dock rather than for transportation, he contends that it is not a vessel. The Supreme Court has agreed to hear this case solely to clear up the ambiguity caused by the different court rulings. As a consequence of that, I don’t hold out much hope for Lozman.
This case will have implications that go far beyond Lozman. For example, are the casino boats that are permanently chained to a dock on the Mississippi River “vessels” and, therefore, subject to maritime liens, maritime injury law and Coast Guard licensing.
What about Queen Mary, which is permanently moored inside a rock breakwater at Long Beach? And what about construction barges that are chained to a bridge piling?
With all of this in mind, it’s fair to say that the Lozman case is not likely to have any impact on the rights of marina tenants — but it will, nonetheless, be an important maritime case.