What is a Vessel?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Bruce Boyden says:

    Judging from what they say in confirmation hearings, it’s not clear that any of the justices believe there *is* a common law. At least, not one that they participate in in any way.

  2. Joe says:

    Chekov: [to a street cop] Excuse me, sir! Can you direct us to the naval base in Alameda? It’s where they keep the nuclear wessels.

    [Star Trek 4]

    Maybe, he knows. Anyway, something to listen to:


  3. Jim Maloney says:

    Of course, I agree: it’s clear that “admiralty is the only true area of federal common law,” and I suppose it’s equally clear that SCOTUS has historically displayed a tendency to forget that, the best evidence EVER probably being Erie‘s infamous denial of the existence of ANY such thing as federal common law…

    But in Lozman, there is arguably a more mundane statutory-interpretation issue at hand: SCOTUS may need to “fill in the interstices” by making a bit of common law, but the cases begins and ends with a definition, found at section 3 of Title 1 of the United States Code, which provides in relevant part: “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.”

    Since “vessel” can mean different things in different contexts in admiralty, it is important to remember that here we are talking only about “vessel” in that specific context (but of course I’m not denying the possibility of overlap…).

    Anyway, at least one Justice (Alito) was keenly aware of this:


    JUSTICE ALITO: 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? Whose purpose are we talking about?


    Then, a bit later, Petitioner was arguing:


    …As a 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 that a floating dock is a vessel. But if somebody did that, then it would no longer be indefinitely moored and would be used in a different function and might be transformed into a…

    [interrupting] JUSTICE ALITO: I think you may — 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 they get — how you get those into the words of the statute.


    I like to make predictions, so I’ll predict that Justice Alito writes the opinion and couches the basis for the decision more in terms of statutory interpretation than making common law. I would not be surprised if it contained the word “interstices” or “interstitial” or something similar in connection with any originally written part of the “test” that the Court ultimately conjures up.


  4. Jim Maloney says:

    Second para above, meant to say: “…but the case [singular, i.e., Lozman] begins and ends with a definition…”

  5. Joe says:

    This case is a law professor’s dream.

  6. Jim Maloney says:

    @Joe #5:

    For now it may be, but it may become much less interesting after it’s been decided!


    Back in the late 1990s, while pursuing an LL.M., I took a course called Constitutional Litigation, taught by two Second Circuit judges. The class met right at the courthouse. Students took turns arguing cases on the then-current SCOTUS docket, having read the briefs, etc. beforehand. Other students joined the two judges on the Panel. The remainder of the class observed. All students rotated through the various roles. After each set of arguments, we adjourned to a conference room and the judges critiqued those who had argued that evening. It was a very valuable experience.

    This is precisely the sort of case that would be ideal for that or a similar format, even though it is not one that directly addresses any constitutional issues (an obvious criterion in the CL course).