The line between maritime and non-maritime jurisdiction continues to be redrawn. A recent case out of the Southern District of New York, Fireman's Fund v Great American Insurance Company, 2013 U.S. Dist. 11114, held a dry dock that sank at its berth in Texas not to be a vessel. Unless plaintiffs could establish an alternative jurisdictional basis such as Diversity of Citizenship, the court ruled it lacked jurisdiction to decide the underlying insurance dispute.

Federal law, specifically 1 U.S.C. § 3, defines a vessel to include every description of watercraft or other artificial contrivance used or capable of being used as a means of transportation on water. The court in Fireman's Fund reasoned that if the dry dock could be used as a means of transportation, as set forth in § 3, it would be considered a vessel and admiralty jurisdiction would exist.

The question of what is a vessel is important in contexts such as Jones Act, Longshoreman and Harbor Workers Act and various forms of insurance.

The court in Fireman's Fund analyzed Supreme Court and lower court decisions, but considered the recent Supreme Court decision in Lozman v City of Riviera Beach, 133 S.Ct. 735 (2013); 2013 U.S. Lexis 907, to be determinative. Judge Oetken, in Fireman's Fund, characterized Lozman as a shot across the bow of lower court decisions that endorsed the "anything that floats" approach to defining vessels. Prior to Lozman, several lower courts used an intent analysis.

Lozman applied a more objective standard holding that a house boat was not a vessel, because a reasonable observer would not consider it designed to a practical degree for carrying people or things over water. It floated and was towable, yet lacked the ability to propel or steer itself.

The dry dock in Fireman's Fund also lacked the ability to propel or steer itself and lacked navigational lights, life boats, a wheel house or other equipment that would allow it to be used for the transportation of things or passengers. The court accordingly ruled that the dry dock was not a vessel and thus the court lacked admiralty jurisdiction.

The court wryly noted that one of the parties arguing for maritime jurisdiction unwittingly made a persuasive case for why in the post Lozman world, the dry dock is not a vessel under federal law. That party urged the lower court to await the Supreme Court's decision in Lozman, urging that the floating structure in Lozman and the dry dock were materially indistinguishable. Be careful what you wish for.

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