What is a Vessel?
So naturally I was interested in Monday’s oral argument on the question of what counts as a vessel for certain purposes in admiralty. This is a fun exercise in class, as you quiz students about things like floating casinos or sofas. (Why the Supreme Court decided to take this issue is a mystery.) The main takeaway for me, though, is that it shows how uncomfortable the Justices are when they must make common law. The Chief Justice’s comment about searching for a clear test is not the mentality of a common-law judge who concentrates on the factual context and embraces uncertain boundaries most of the time. (Basically, the definition of a vessel is one of those “totality of the circumstances” kind of situation.)
This lack of common-law experience is not surprising, as admiralty is the only true area of federal common law. And none of the current Justices have ever served on a state court or done much with maritime jurisdiction. We’ll see what they come up with in Lozman. That will be an excellent addition to my Spring Admiralty syllabus!