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APPLICABILITY OF THE LIMITATION OF LIABILITY ACT TO PERSONAL WATERCRAFT.

TABLE OF CONTENTS

I. Introduction                                        388
     A. The Problem                                    389
II. Personal Watercraft                                390
III. The Limitation of Liability Act                   391
     A. Origins                                        391
     B. Legislative History                            392
     C. The Supreme Court's Definition of "Vessel"     395
        1. Stewart v. Dutra Constr. Co                 395
        2. Lozman v. City of Riviera Beach, Florida    399
     D. Applicability to Pleasure Craft                400
        1. The Mamie                                   400
        2. Baldassano v. Larsen                        401
        3. In re Guglielmo                             403
     E. Applicability to Personal Watercraft           404
        1. Keys Jet Ski, Inc. v. Kays                  405
        2. In re Nassau Bay Water Sports, Inc          406
IV. Categorizing Personal Watercraft                   407
    A. Vessel                                          407
        1. Distinguishing Stewart                      407
        2. Distinguishing Lozman                       408
    B. Pleasure Craft                                  411
    C. Dangerous Weapon                                412
        1. United States u. Gibson                     412
V. Policy Considerations                               413
VI. The Need for Reform                                414
VII. Conclusion                                        415


I. INTRODUCTION

Imagine that you are lying on a white, sandy beach on the Gulf of Mexico during a family vacation. Your close family is there--your wife and three children; your brother, his wife, and their two children; and your parents. You have been at the beach all day, soaking up the sun. The younger children are building sandcastles, and earlier saw their first jellyfish. The adults and children who are of age have had a few drinks from the beachside bar.

Your twenty-one-year-old niece, Rachel, decides to rent a jet ski from Barnacle Bob's Beach Equipment Rentals (Bob's) so she can watch the sunset from the water. Bob is not at the store today, but he left Axel, his nineteen-year-old employee, manning the shop. Axel is quite taken by Rachel's beauty--so much sothat he does not notice that Rachel is intoxicated as she stumbles toward the stand, slurring her words. Axel pulls a personal watercraft off the beach and pushes it into the water, showing Rachel the basics of how to operate the machine, without mentioning anything about safety or precautions. (1) Axel is unaware of any company policy or ordinance that restricts him from renting a jet ski to anyone who appears to be intoxicated.

Rachel takes off toward the horizon, doing loops around and around, away from the rest of the beachgoers. Rachel stops for a few moments to watch the sun go down before heading toward the shore. Suddenly, she sees a fifty-foot yacht crossing her path. From the shore, it appears that Rachel is angling around the yacht, trying to beat it. However, at the last moment, she takes a sharp left turn--directly into the bow of the yacht. Rachel dies a week later from her injuries suffered in the horrific collision.

Your brother and his wife file a claim in the United States District Court for the Southern District of Alabama against Bob's for Rachel's wrongful death. Bob's files a Complaint for Exoneration from or Limitation of Liability, and the court grants Bob's motion to limit its liability based on precedent in the Eleventh Circuit. (2) Because of the limitation, your brother and his wife only collect damages based on the value of the personal watercraft--a paltry sum compared to the loss of their daughter--and for Rachel's funeral and medical bills.

A. The Problem

Allowing a commercial personal watercraft (PWC) owner to limit his liability in a civil maritime suit means that victims, or the family of victims, will not receive the compensation they deserve. Limitation of liability "allow[s] vessel owners to escape liability in circumstances that, to many, seem bizarre and unjust." (3) The Limitation of Liability Act (Act) (4) provides that a vessel owner cannot be liable for more than the value of the vessel (5) unless the owner has privity or knowledge of the negligent act or unseaworthiness. (6) Given that the value of an average PWC ranges between $5,000 and $15,000, (7) there is little available for damages. Further, PWC should not be categorized as vessels for the purposes of the limitation statute. Nor should they be categorized as pleasure craft, which circuit and district courts have deemed "vessels" for purposes of the Limitation of Liability Act. (8) To categorize PWC as "vessels" for the application of the limitation statute is an inaccurate expansion of the Act, and not why Congress enacted the statute in 1857. Rather, it was intended to help the American shipping industry compete in international trade with other countries. (9)

First, this comment examines the legislative history of the statute; gives an overview of the statue allowing limitation of liability; and reviews the statute's applicability to vessels, pleasure craft, and, more recently, PWC. It then argues that PWC must be distinguished from vessels or pleasure craft, and should be re-categorized as a dangerous weapon; therefore, the Limitation of Liability Act should not apply. Finally, this comment presents arguments why, as a matter of public policy, commercial PWC owners should not be allowed to limit their liability.

Allowing commercial PWC owners to limit their liability puts victims and their families at a disadvantage, and unable to obtain the damages they deserve. This area of maritime law is not adequately addressed because a PWC falls within a unique class of vessels having specific risks and causing specific injuries, which is why Congress should amend the Limitation of Liability Act to exclude PWC.

II. PERSONAL WATERCRAFT

A PWC "uses an inboard motor powering a water jet pump as its primary source of motive power, and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conventional manner of sitting or standing in the vessel." (10) Most PWC are around ten feet long and have "the horsepower of a large outboard engine and the acceleration of a motorcycle." (11) PWC are designed "for quick, sharp turns, low-radius circling, and rapid acceleration," (12) and are capable of reaching speeds of up to seventy miles per hour. (13) To accelerate, the operator uses the "hand-powered throttle located on the right-side grip." (14) To steer, the operator must maneuver her body and aim the "front-mounted grips." (15) A PWC usually requires high speeds to make sharp turns. (16)

III. THE LIMITATION OF LIABILITY ACT

A. Origins

Congress enacted the Limitation of Liability Act in 1851. (17) However, limitation of a shipowner's liability did not originate with the Act. (18) Scholars believe that the spirit of the Act was present in Roman law, or "codified in the Amalphitan Tables during the... eleventh century." (19) European countries adopted the doctrine as commerce advanced. (20) In the Middle Ages, sea trade increased competition among the European kingdoms, (21) prompting the spread of the principle of limitation of liability throughout the continent. (22) The doctrine had become law in many "continental jurisdictions" by the sixteenth and seventeenth century (23) and was drafted into maritime codes across the Eastern world. Both "Louis XIV's L'Ordonnance de la Marine and its progeny, the Code de Commerce of 1807," included limitation of liability rules. (24)

English common law provided that a shipowner was responsible for the actions of the master of the vessel, despite the fact that the master made decisions without input from the shipowner. (25) This principle led to cases that "exposed the British shipowner's unlimited liability for harm arising from its merchant fleet and those of its competitors." (26) This unjust result produced pleas from English shipowners to protect them against liability for the fault of their masters. (27)

In 1734, England passed a limitation of liability statute that conditioned an owner's ability to limit on his lack of privity and knowledge of negligence or unseaworthiness. (28) The English law differed from the German and French versions, both of which allowed an owner to limit its liability even if the owner was at fault. (29) The law was intended "to encourage capital investment and increase participation in the shipping industry." (30) In 1813, Parliament amended the law, and the new version became the precursor to the Act later passed by Congress. (31) The amendment excluded from limitation: '"Lighter, barge, Boat, or Vessel... used solely in Rivers or Inland Navigation' and any unregistered ships." (32)

B. Legislative History

In the eighteenth and early nineteenth centuries, American shipowners and marine industry leaders were acutely aware that the nation had not implemented a limitation of liability statute. (33) The Limitation of Liability Act was introduced in 1851 with the intent to increase American commercial shipping. (34) The statute was enacted at the time when pleasure craft were just being developed. (35)

An 1886 amendment to the Act extended it "to all seagoing vessels, and to vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters." (36) This amendment has been a prominent tool, supposedly demonstrating legislative intent, for courts interpreting the Act as applying to all vessels regardless of function, use, or size. (37)

The Act was again amended in 1935 and 1936 after two disasters on the water that resulted in the deaths of hundreds of people. (38) "Congress [passed] what has become known as the "loss of life amendments" which "provided for a minimum limitation fund of $60 per ton to satisfy claims for loss of life or bodily injury involving 'any seagoing vessel.'" (39) In 1936, Congress amended this section of the Act and provided that it will not apply to the following:
[P]leasure yachts, tugs, towboats, towing vessels, tank vessels,
fishing vessels, or their tenders, self-propelled lighters, nondescript
self-propelled vessels, canal boats, scows, car floats, barges,
lighters, or nondescript non-self-propelled vessels even though the
same may be seagoing vessels within the meaning of such terms as used
in section 188 of this title. (40)


The Act was re-codified at 46 U.S.C. [section][section] 30501-30512 in 2012. It currently provides that "the liability of the owner of a vessel for any claim, debt, or liability... shall not exceed the value of the vessel and pending freight." (41) Therefore, the owner of a vessel is protected against damages exceeding the value of the vessel if the accident occurred without the owner's privity or knowledge of any negligent act or unseaworthy condition. (42) Under the statute, the value of the vessel is not calculated until the end of the voyage, which means it is calculated after the casualty. (43) This method of calculation "often leaves the owner with only minimal exposure." (44) Per the statute, "the term 'owner' includes a charterer that mans, supplies, and navigates a vessel at the charterer's own expense or by the charterer's own procurement." (45)

An owner's limitation of liability for personal injury or death "does not apply to pleasure yachts, tugs, towboats, towing vessels, tank vessels, fishing vessels, fish tender vessels, canal boats, scows, car floats, barges, lighters, or nondescript vessels." (46) An exception exists for actions involving personal injury or death in which the amount of the vessel does not pay the damages in full and "the portion available to pay claims for personal injury or death is less than $420 times the tonnage of the vessel, [then] that portion shall be increased to $420 times the tonnage of the vessel." (47)

Presently, the Limitation of Liability Act faces criticism, (48) including that it was "intended for a different time, industry, and economy." (49) Courts have interpreted the Act "with a variety of short and long term interests in mind, resulting in considerable confusion of both policy and procedure." (50) The differing interpretations have "bred uncertainty and inhibited uniformity." (51) Further, the inconsistent interpretations have led to "bizarre and arguably unjust application of the Act to tort liabilities." (52) At the time the statute was enacted, credible reasons existed for its purpose--namely, encouraging American shipbuilding and ownership. (53) However, the purpose behind the Act's passage has not been fulfilled since 1851. (54) Today, there is more corporate ownership, as opposed to individual ownership, of commercial vessels than was common in the past, and more insurance is available to vessel owners. (55)

C. The Supreme Court's Definition of "Vessel"

Unfortunately for the purpose of this paper, there is "no comprehensive definition of the word 'vessel'... found in the Act itself." (56) Courts have been generous, albeit inconsistent, in their determinations of different types of boats, but nevertheless, as one court stated, "neither size, form, equipment nor means of propulsion are determinative factors." (57) Moreover, Congress has neither enacted nor applied a limitation to the meaning of "any vessel" found in the section on the basic right to limit liability, even though presented with opportunities to do just that. (58) The purpose of the statute, as passed in 1851, was to encourage the growth of the American shipping industry. (59) Therefore, only "vessels whose construction and function were of a commercial nature" should be susceptible of limitation under the Act. (60)

1. Stewart v. Dutra Constr. Co.

The United States Supreme Court first defined the term "vessel" in Stewart v. Dutra Constr. Co. (61) The Court addressed the issue of whether a dredge is a vessel for purposes of the Longshore and Harbor Workers' Compensation Act (LHWCA). (62) The Commonwealth of Massachusetts hired the Dutra Construction Company (Dutra) to complete Boston's Central Artery/Tunnel Project (The Big Dig). (63) Dutra hired Willard Stewart to manage the mechanical systems of the Super Scoop, a dredge used for the project. (64) Stewart was severely injured while aboard Scow No. 4, one of Super Scoop's support vessels, when Scow No. 4 suffered an engine failure. (65) Stewart was "feeding wires through an open hatch located about ten feet above the engine area." (66) Another employee aboard Super Scoop employed its bucket to force the scow to move, which threw Stewart (67) out of the hatch and onto the deck below. (68)

Stewart sued Dutra under the Jones Act, claiming that he was a seaman who was injured because of Dutra's negligence. (69) His alternative claim was under the LHWCA, which allowed covered employees to sue the "Vessel owner' as a third party for an injury caused by the owner's negligence." (70) The district court granted Dutra's motion for summary judgment, and the First Circuit affirmed. (71) Both courts agreed that any negligent acts committed by Dutra were made in its capacity as employer, as opposed to a vessel owner under the LHWCA. (72)

Granting certiorari, the Supreme Court attempted to resolve the vessel issue. First, the Court explained that when LHWCA was passed, sections 1 and 3 of the Revised Statutes of 1873 specified:
[I]n determining the meaning of the revised statutes, or of any act or
resolution of Congress passed subsequent to February twenty-fifth,
eighteen hundred and seventy-one... [t]he word 'vessel,' includes
every description of water-craft or other artificial contrivance used,
or capable of being used, as a means of transportation on water. (73)


The Court pointed out that, because Congress passed the LHWCA after February 25, 1871, the term "vessel" was defined under the statute according to the definition given in the Code, which codified the definition that had developed through general maritime law. (74) The Court reasoned that the definition had often been used by courts to hold that dredges were vessels, and that the dredges in those cases were very similar to Super Scoop. (75) Even before the Jones Act and the LHWCA, the Supreme Court held that dredges were vessels. (76)

Justice Thomas, writing for the majority in Stewart, stated that the deciding factor to determine if any watercraft was a vessel was "whether the structure was a means of maritime transportation." (77) The Court in Stewart agreed with its prior jurisprudence and stated that "dredges serve[d] a waterborne transportation function, since in performing their work they carr[ied] machinery, equipment, and crew over water." (78) Further, the Court had previously held that section 3 of the Revised Statute of 1873 should be defined in tandem with general maritime law. (79)

The Court also pointed out that two of the decisions upon which Dutra relied, Cope v. Vallette Dry-Dock Co. (80) and Evansville & Bowling Green Packet Co., (81) did not narrow the definition of a vessel as much as Dutra argued. (82) Cope dealt with a drydock, whereas Evansville centered upon "a wharfboat attached to the mainland," and, as Justice Thomas reasoned, in Cope and Evansville the Court had ruled in that the watercraft in both cases were not vessels for the purposes of section 3 because they were "not practically capable of being used to transport people, freight, or cargo from place to place." (83) Instead, the two cases "did no more than construe [section] 3 in light of the distinction drawn by the general maritime law between watercraft temporarily stationed in a particular location and those permanently affixed to shore or resting on the beach ocean floor." (84)

Finally, the Court pointed out that the test employed by the First Circuit was inconsistent with the wording of section 3, and that the meaning of the term "vessel" had developed through general maritime law. (85) Section 3 did not, by its text, mean that a vessel must only be used for the primary purpose of transportation. (86) In fact, the Court explained that not only was Super Scoop capable of transporting over water, but it was transporting people and things over water for the Big Dig. (87) In its ruling, the Court strongly rejected the "snapshot test"--"looking to whether a watercraft is motionless or moving"--much as it did in Chandris, Inc. v. Latsis. (88) Accordingly, a watercraft need not be "in motion" to be a considered vessel under section 3. (89) To emphasizes this, the Court analogized the Jones Act to the LHWCA:
Just as a worker does not oscillate back and forth between Jones Act
coverage and other remedies depending on the activity in which the
worker was engaged while injured, neither does a watercraft pass in and
out of Jones Act coverage depending on whether it was moving at the
time of the accident. (90)


A watercraft may lose its status as a vessel if it is taken out of the water for long periods of time, which would mean that it is no longer "in navigation" for the purposes of section 3. (91) The requirement that a vessel be '"in navigation'... is an element of the vessel status of a watercraft... relevant to whether the craft is 'used, or capable of being used' for maritime transportation." (92) However, this was not pertinent in Dutra because Super Scoop was never "rendered practically incapable of maritime transport." (93) Thus, the Court concluded that a dredge is a vessel for the purposes of the LHWCA. (94)

The Stewart decision established the definition in section 3 as the default rule for what constitutes a vessel within the United States Code, which codified the meaning of "vessel" under general maritime law. (95) Stewart settled the law in this area and clearly defined the term "vessel;" that is, until the Supreme Court decided Lozman v. City of Riviera Beach, Florida. (96)

2. Lozman v. City of Riviera Beach, Florida

In Lozman, the Supreme Court changed the definition of a vessel. (97) It determined that a vessel is something generally "capable of being used... as a means for transportation on water." (98) Like in Stewart, the Court pointed to the United States Code, which defines "vessel" as including "every description of watercraft or other artificial contrivance used, or capable of being uses, as a means of transportation on water." (99) The Court focused primarily on the phrase "capable of being used" (100) and determined that a watercraft is a vessel if "a reasonable observer, looking to the home's physical characteristic and activities, would consider it designed to a practical degree for carrying people or things over water." (101)

Fane Lozman owned a houseboat measuring sixty-feet long by twelve-feet wide. (102) The home floated because of "empty bilge space," (103) it was made of plywood, and it had three sets of French doors. (104) The city filed an in rem action against the floating home, seeking a maritime lien and damages for trespass and dockage fees. (105) The Court determined that the houseboat was not a vessel because it lacked a method of self-propulsion and was not designed to transport cargo or people over water. (106) The Court ruled that several facts determined that the houseboat was not a vessel: it could not store or generate electricity, had no "steering mechanism" or rudders, it had an unraked hull, and it drafted only ten inches. (107) The floating structure differed from a normal houseboat because it lacked a steering mechanism and it had to be towed over water whenever Lozman wanted to move to a new location. (108)

After Lozman, which engendered significant confusion on the definition of "vessel," the issue remains as to whether a PWC is a "vessel" for the purposes of the Act.

D. Applicability to Pleasure Craft

Significant debate surrounds the applicability of the Act to pleasure craft. The legislative history does not seem to support its application to pleasure craft--specifically because pleasure craft were not in existence at the time of the Act's passage. (109) In the mid-1800s, no congressman could have contemplated the widespread use and ownership of pleasure craft that is now common. (110) Further, the purpose of the statute was to make the American shipping industry a competitor in the industry with European countries, not to regulate "weekend sailors disporting themselves on rivers and lakes." (111)

1. The Mamie

The first interpretation of the Act and its applicability to pleasure craft came from The Mamie, which involved a steam-powered pleasure yacht that was "enrolled and licensed for the coasting of trade, and engaged in commerce and navigation between ports and places in different states and territories, and foreign countries, upon... the navigable waters." (112) The suit arose when the yacht collided with a steamboat. (113) The United States District Court for the Eastern District of Michigan held that the Act did not apply because it was intended to protect owners whose vessels engaged in trade, not local commerce. (114)

Many United States Circuit Courts, along with numerous district courts, have interpreted the Limitation Act in cases involving pleasure craft. (115) Those courts have examined the language of the statute and looked to the missing legislative history to infer that Congress wanted to exclude pleasure craft. (116) Courts have interpreted the legislative intent behind the 1936 amendment that excluded pleasure yachts from the loss of life amendment (117) to indicate that Congress intended to include pleasure yachts within the "basic right" of vessel owners to limit their liability pertaining to "any vessel." (118)

The Supreme Court has had three occasions to apply the Act to pleasure craft, but each decision has "been conspicuous for the absence of any discussion of, or quarrel with the inclusion of pleasure craft within the comprehension of the Statute." (119) Congress has not interposed any limits on the meaning of "any vessel", despite having opportunities to do so, and until they do, courts will continue to breed confusion. (120) Regardless of "strong and unstinting criticism from bar and bench, as well as scholarly comment, the holdings of the federal courts have remained constant in favor of allowing limitation of pleasure craft." (121) However, in 1984, the districts courts began declining to apply the precedent because of public policy, (122) as exemplified in Baldassano v. Larsen, a case decided by the United States District Court for the District of Minnesota. (123)

2. Baldassano v. Larsen

In Baldassano, the court held that the Limitation of Liability Act "was never designed to cover pleasure boats such as [the defendant's] pontoon and that to allow the company to take advantage of this Act would result in a gross miscarriage of justice." (124) The case involved the collision of the defendant's pontoon and a speedboat. (125) The court pointed out that the original purpose of the statute was "to insure that American shipping no longer be at a competitive disadvantage." (126) Next, it noted that at the end of the nineteenth century courts began to broaden the scope of the statute in favor of shipowners. (127)

The inclusion of pleasure craft under the Act "occurred with virtually no discussion" and countered the historical purpose of the Act. (128) The court disagreed with the earlier courts because "the spirit of the Act demands so," (129) reasoning that categorizing a pleasure craft as a vessel for the purpose of permitting admiralty jurisdiction does not make it is a vessel according to the Act. (130) The court found no valid rationale for including pleasure craft under the Act because it defied the purpose and history of the Act and "pervert[ed] justice." (131)

Further, the court reasoned that the climate of United States shipping has vastly changed since the statute was enacted because "individual and syndicate ownership of vessels has yielded to corporate ownership" and "insurance coverage... has greatly expanded." (132) The court drew an analogy between automobiles and pleasure craft to express its policy argument: "To limit liability in a case such as this would be as outrageous as allowing an automobile owner to limit his liability to the value of his car should he crash while out on a Sunday drive." (133) It also reasoned that the activities of pleasure craft are not within the commercial activities the Act contemplated when enacted, (134) and that the inherent inequities of the Act were heightened when the vessel was a pleasure craft with minimal value as compared to a large cargo ship. (135)

Despite the logical arguments raised in Baldassano, which was not overruled by the Eighth Circuit, and other district court cases that support the exclusion of pleasure craft from the scope of the Act, several circuits and many other district courts have allowed owners of pleasure craft to limit their liability. (136)

3. In re Guglielmo

The United States Second Circuit Court of Appeals allowed a pleasure craft owner to limit his liability. (137) Guglielmo owned a twenty-one-foot motorboat that collided with a vessel owned by Kroemer, (138) who died from his injuries. (139) At the time of the accident, Guglielmo's son, who was twenty-one years old, was driving the watercraft and pulling a water skier. (140)

Kroemer's estate filed a wrongful death and personal injury action in New York state court. (141) Meanwhile, in the United States District Court for the Eastern District of New York, Guglielmo filed a petition to limit his liability to the value of the vessel, which he stipulated to be $7,000. (142) Kroemer argued that the Act was passed to protect vessel owners participating in maritime commerce, and thus the Act should not be applied to Guglielmo's vessel. (143)

The court disagreed (144) based on a clause in the statute that it referred to as the "Except as" clause. (145) It states that: "Except as otherwise specifically provided Section 183 applies to all seagoing vessels, and also to all vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters." (146) The court held that, because this section specifically excluded certain vessels, including some pleasure craft, but other sections of the statute do not, then logically the statute must include them. (147)

The court noted that allowing pleasure craft owners to limit their liability does not further the Act's purpose "of fostering investment in commercial shipping." (148) However, this did not stop the court from reaching its conclusion, because it again draw attention to Congress's decision to exclude pleasure craft in only certain sections of the Act. (149) The court also noted that the jurisprudence supported its holding (150) because the Supreme Court had opportunities to consider the issue but did not directly address it; instead the Court applied the Act to pleasure craft without deliberation. (151)

Finally, the court asserted that "[a]dherence to the Act's language is also consistent with federal maritime decisions indicating that the scope of the Act is coextensive with admiralty jurisdiction except insofar as Congress has enacted specific exemptions" and "[f]ederal admiralty jurisdiction is not limited to commercial maritime activity." (152) The facts surrounding the case included navigation and was brought under admiralty jurisdiction, further supporting the holding that the Act includes pleasure craft. (153)

Assuming that the Act applies to pleasure craft based on the jurisprudence, the next step is to determine whether a PWC fits into the category of "pleasure craft."

E. Applicability to Personal Watercraft

As one commentator wrote: "[I]f one applies the transportation test broadly, even a self-propelled surfer, or skier 'under tow,' may not be distinguishable from a jet skier. Where the line will eventually be drawn remains to be seen." (154)

1. Keys Jet Ski, Inc. v. Kays

In Keys Jet Ski, Inc. u. Kays, (155) the Eleventh Circuit ruled that the Limitation Act applies to pleasure craft, including PWC, holding that, "[a]bsent congressional determination that similar small pleasure craft are not entitled to protection under the Limitation Act... a jet ski is a 'vessel' covered by the Limitation Act." (156) The Kays rented a PWC for half an hour in Key West, Florida from Keys Jet Ski, Inc. (157) The Keys Jet Ski employee who rented the PWC to the Kays gave the family basic instructions on operating the watercraft; however, the employee did not give any instructions on safety procedures. (158) The Kays' son was operating the PWC when he crashed into an open fishing boat. (159) The Kays moved to dismiss the Keys Jet Ski petition for limitation of liability (160) and the district court agreed, concluding that the Act was inapplicable to PWC. (161)

On appeal, the Eleventh Circuit pointed out that, in 1886, the Act was amended to include "all sea-going vessels." (162) Further, although Congress amended the Act many times after 1886, it did not amend the types of vessels to which the Act applied. (163) The court concluded that the statute applied because Congress had not amended it to exclude PWC "despite the logical appeal of apply[ing] the Limitation Act only to commercial vessels." (164) The court agreed with the district court that allowing PWC owners to limit their liability conflicts with the historical purpose of the Act. (165) However, "restriction of its applicability require[d] congressional action," and thus Keys Jet Ski was entitled to limit its liability. (166)

2. In re Nassau Bay Water Sports, Inc.

The United States Fifth Circuit Court of Appeals has also weighed in on the issue. (167) Ronald Shrader and Forrest and Brenda McClelland rented two PWC from Nassau Bay Water Sports (NBWS). (168) At the time of the incident, Jonathan Johnson was driving the PWC rented by Shrader, and Forrest was driving the other PWC, with Brenda riding as passenger. (169) Johnson's PWC struck the McCellands' PWC (170) and, as a result, Brenda experienced minor injuries to one of her legs, and Forrest suffered a compound fracture to one of his legs. (171) The district court allowed NBWS to limit its liability to the value of the two PWC, which was $7,400. (172)

The McClellands argued that a PWC is not a vessel for the purposes of the Act because, like a pleasure craft, a PWC does not fulfill the purpose of the Act. (173) The court noted that the original purpose of the Act was "to promote investment in the domestic commercial shipping industry." (174) The court pointed out that because the purpose of the statute was to strengthen the shipping industry, the Act should not include pleasure craft or PWC--but despite this conclusion, the court stated that in other cases the Act was applied to pleasure craft. (175) The court also cited to Kays to support its conclusion that the Act applied to owners of a PWC rental company. (176) Like other courts, in McClelland the court noted that Congress excluded pleasure craft from certain sections of the Act, but not the entire Act. (177) Finally, the judge stated that NBWS used the PWC as a source of income, not as pleasure craft, (178) and thus affirmed the district court's decision. (179)

Allowing commercial PWC owners to limit their liability results in victims not receiving the compensation they deserve, and fails to serve the intent and purpose of the Act.

IV. CATEGORIZING PERSONAL WATERCRAFT

A. Vessel

1. Distinguishing Stewart

The definition of "vessel" in Stewart should not apply to PWC solely because of commercial use. In Stewart, the Court held that the dredge was a vessel partly because it "served a waterborne transportation function, since in performing [its] work [it] carries[d] machinery, equipment, and crew over water." (180) Commerce involves transporting people, cargo, or equipment over water for hire. The Harbor Maintenance Tax imposes a tax "on any port use in an amount equal to 0.125 percent of the value of the commercial cargo involved." (181) The "actual charge" paid by the passenger of a cruise liner pays for the passengers to be transported from one port to another. (182)

The difference between these commercial uses and the rental of a PWC for a short time is that the PWC is not transporting people, cargo, or equipment to another location. The lessees of PWC from a beach rental business rent for fun and to enjoy the water, not for the PWC to transport them anywhere. Cruise ships are larger vessels that travel much farther from shore than PWC, which also explains the difference between dredges like the one in Stewart and PWC. Dredge transport crew and equipment over water to help construct things, and are thereby actively participating in maritime commerce. (183) A PWC does not transport people or equipment over water to another location, making it unlike the dredge in Stewart or a cruise ship. The activities of a PWC are far removed from traditional maritime commerce activities.

2. Distinguishing Lozman

Categorizing PWC as vessels "for jurisdictional purposes" is not the same as defining PWC as vessels for purposes of the Act. (184) It is plausible that the Lozman definition of "vessel" only applies to jurisdictional determinations. (185)

Because Lozman was predicated upon a jurisdictional issue, (186) the definition of "vessel" was intended only to satisfy that jurisdictional question, an in rem issue. (187) In Lozman, the city arrested the vessel and asserted a maritime lien. (188) Federal courts have exclusive jurisdiction to enforce a maritime lien. (189) For the lower court to have jurisdiction, the houseboat had to be a vessel. The "jurisdictional fact is entirely independent of the merits" of the case. (190) Therefore, Lozman should be limited to defining "vessel" for purposes of satisfying the issue of jurisdiction, which is not the same as whether an object is a vessel under the Act. (191)

Further, the Court in Lozman was hesitant to expand admiralty jurisdiction because the houseboat was not involved in commerce. (192) To determine whether federal admiralty jurisdiction is proper, courts employ the maritime nexus test, which first asks "whether the incident involved [had] the potential to disrupt maritime commerce." (193) This initial prong focuses on the "potential effects" to maritime commerce, which considers "whether the 'general features' of the incident [are] 'likely to disrupt commercial activity."' (194) The second prong is "whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." (195) Under this factor, the Court "ask[s] whether a tortfeasor's activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand." (196) The type of vessel involved in the incident does not matter to the test. (197)

For example, if a PWC allides with a bridge on a navigable waterway within the United States, resulting in closure of the river while the bridge is repaired, an ensuing action would be properly brought in federal court because of the incident's affect on the navigability of the river, like in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. (198) However, if two PWC collide near the shores of Orange Beach, Alabama, the effect on maritime commerce would likely be negligible. A collision occurring close to shore does not impede vessels in commerce, because commercial vessels will be further out from shore. A PWC alliding with a bridge on the Mississippi River would disrupt maritime commerce, like the pleasure craft alliding with the bridge--but not because of the type of watercraft--rather, because the navigability of the river would be disrupted.

The above situation is different from a collision between two pleasure boats, like in Foremost Ins. Co. v. Richmond, because that accident occurred on navigable waters and had potential to affect the commercial navigability of the river. (199) The uses of a PWC are generally unlikely to severely impact maritime commerce. Because Lozman centered on a jurisdictional issue, and one of the reasons for the Court's holding was hesitation to expand admiralty jurisdiction to a watercraft not involved in maritime commerce, the definition of "vessel" in Lozman is inapplicable to PWC.

There are several other reasons that the vessel definition developed in Lozman is inapplicable to PWC. The Court in Lozman gave the following test to determine what is a vessel: "[A] reasonable observer, looking to the home's physical characteristic and activities, would consider it designed to a practical degree for carrying people or things over water." (200) The Court wrote that the test is not determinative in every situation, (201) implying that it should only be used where there is doubt surrounding an object's "practical capacity to carry people or things over water." (202) This "reasonable observer" test does not apply to PWC because it is limited to "borderline cases." (203) A PWC is undoubtedly capable of transporting people over water; thus, classifying it according to the Lozman test is inappropriate.

Another shortcoming of the Lozman definition is the criteria used by the Court to determine whether the houseboat was a vessel, (204) which was highly influenced by the "overall combination of objective factors." (205) The Court suggested that lower courts should not apply the definition when the watercraft "only technically" meets the requirements. (206) A PWC does not meet all of the requirements because most draft only about eight inches, (207) not ten inches like the houseboat in Lozman. (208) There is little information about whether most PWC can generate or store electricity; assuming that they do not, PWC do not meet, at minimum, two of the Lozman factors.

The definition of "vessel," as developed by the Court in Lozman, does not include PWC. Therefore, PWC should not be defined as "vessels" for the purposes of the Act.

B. Pleasure Craft

For the purposes of the Act, PWC, unlike pleasure craft, are not and should not be classified as vessels. In most municipalities where watersports are popular, little regulation of PWC rental exists compared with the rental of pleasure craft. An internet search for "Orange Beach, Alabama jet ski rental" returned a result of three places in Orange Beach to rent PWC. An entire article in the Orange Beach, Alabama Code of Ordinance is dedicated to the use of commercial vessels, while the use of commercial PWC is just one section within a much larger article. (209) The commercial vessels article has an entire section on how alcoholic beverages can be sold and consumed, (210) but there is no such rule in the PWC rental section.

Another city, Sandusky, Ohio, located on Lake Erie, also has PWC rental locations. A few discrepancies exist between the treatment of vessels and personal craft in the Sandusky Municipal Code. Neither the definition of "watercraft" (211) nor that of "vessels" includes the term "PWC," (212) and no other part of the Code that reference vessels or watercraft includes PWC. For example, the article that references the issuance of permits does not mention PWC; therefore, operators of PWC do not need a permit. (213) Another more alarming example is the article prohibiting the operation of a vessel while under the influence of drugs or alcohol. (214) Nowhere in this article are PWC mentioned, only vessels generically, and PWC are not included in the definition of "vessel." (215) There is little to no regulation of PWC rental, and thus it becomes clear that pleasure craft and PWC are not treated the same in this municipality's regulations. (216)

What is commonly known as a "booze cruise" is an excellent example of a distinction between pleasure craft rental and PWC rental. If a group of friends rent a sailboat in Orange Beach, Alabama, a person skilled at navigating a sailboat will operate it. If the renters decide to drink while aboard, they will be safe in the hands of the competent navigator. However, if a group of friends rent PWC and drink heavily, the PWC are being operated by intoxicated individuals, which adds a heightened element of danger. This added danger highlights the difference between pleasure craft and PWC.

Because a PWC is neither a vessel nor a pleasure craft for the purposes of the Act, PWC must be placed in their own category.

C. Dangerous Weapon

An analogy is easily drawn between a dangerous weapon, as defined in criminal law, and a PWC. In Louisiana, (217) as well as other jurisdictions, a dangerous weapon is an object that is not an "inherently dangerous" weapon, such as a loaded firearm, (218) but one that becomes dangerous only when used by the suspect in an "assaultive" manner; i.e., capable of causing grave bodily injury. (219) In other words, a dangerous weapon is any object capable of causing serious bodily harm when used in a dangerous manner, although it is not dangerous when used properly.

1. United States v. Gibson

The Sixth Circuit has held that a motor vehicle may be defined as a dangerous weapon. (220) In Gibson, the defendant struck a police officer with his vehicle. (221) The Sixth Circuit affirmed the driver's conviction for assault with a dangerous weapon, (222) stating that there was sufficient evidence that the defendant used his car in a deadly way by directing it at the officer and accelerating. (223)

This same concept can be applied to a PWC. A motor vehicle is typically used to transport people over land, and PWC are used to move people across the water. An experienced PWC operator knows how to safely control the craft. However, many renters have never before operated a PWC, and many local ordinances do not regulate who may rent a PWC or whether they must be instructed on its safe operation.

Like a motor vehicle, PWC reach high speeds and must be operated with care; when operated in a reckless manner, like the vehicle in Gibson, people can be injured or killed. Additionally, the areas from which PWC are rented and navigated are generally close to busy shores and around many other people and types of watercraft, which is a different situation from a cargo vessel operating hundreds of miles from shore. Adding alcohol or young adults who are inexperienced operating any type of watercraft, like in Kays, (224) can be a fatal recipe.

Like the motor vehicle in Gibson, because PWC can be used in a manner that could cause serious bodily harm, it is necessary to look at them through a different lens than a pleasure craft or a vessel.

V. POLICY CONSIDERATIONS

Congress's purpose in enacting the Limitation Act "was to place the American merchant marine and shipbuilding industry on equal footings with those of the old maritime nations of Europe where... various systems of limitation had been enjoyed for some time, and in this fashion to encourage investment in shipping." (225) PWC do not fit that purpose, and allowing their owners to limit their liability creates serious undesirable results.

Many public policy arguments exist opposing the applicability of the Act to PWC. For example, as the court in Baldassano reasoned, renting a PWC is nothing more than a "short recreational voyage." (226) Without a doubt, perhaps the most inequitable result from allowing limitation for PWC is that the victims will not receive the damages to which they are entitled. Invoking the language of Baldassano, allowing a PWC owner "to limit liability... would be as outrageous as allowing an automobile owner to limit his liability to the value of his car should he crash while out on a Sunday drive." (227) Other courts have expressed "little reason for private [PWC owners] to take advantage of the somewhat drastic--for the injured claimants--provisions of the Limitation Act." (228) Allowing PWC owners to limit their liability protects the "owners... and their insurers at the expense of those injured or killed and their families." (229) The repercussions are unnecessary and unjust, and Congress should address it if the courts will not.

VI. THE NEED FOR REFORM

As the court in Baldassano so eloquently and simply phrased it, the courts "cannot ignore the fundamental unfairness of the law as it exists." (230) Many of the conditions that led to the original iteration of the Act are no longer present. (231) Corporate ownership is prevalent, as opposed to individual ownership, which was standard in 1851. (232) Corporations have a separate form of limited liability, (233) and insurance coverage has grown tremendously over time. (234)

The Act underwent amendments in 1935 and 1936, (235) but the 1936 amendment did not apply to "pleasure yachts." (236) This amendment excluded pleasure craft and other vessels not involved in commerce. Courts have used this amendment to determine that, by excluding pleasure craft from this section of the Act, but not others, Congress intended to include pleasure craft in other sections of the Act. (237) However, no such expression of congressional intent has been found that supports this proposition. (238)

Because the courts have embraced a reading of the statute that is not supported by the language of the Act, nor in any document illustrating congressional intent, Congress should amend the Act. PWC do not participate in maritime commerce, and there is no compelling reason why the owners of these watercraft should be allowed to limit their liability. Not only is it inequitable, it is illogical. PWC do not participate in any activity considered to be maritime commerce which the Act was envisioned to protect. Congress should amend the Act to exclude all forms of watercraft that are not used to conduct maritime commerce.

VII. CONCLUSION

Grant Gilmore and Charles L. Black, Jr., wrote in their Law of Admiralty textbook that the Act would more than likely be repealed by the third edition of their book and the chapter on the Act would be nothing more than a historical overview. (239) The intervening years and court decisions have shown that Mr. Gilmore and Mr. Black were incorrect. Despite Justice Black's scathing remarks in Maryland Casualty Co. v. Gushing, discouraging expansion of the Act, (240) and a string of negative commentary from cases and scholars that followed, the Act remains intact. (241)

PWC are a unique class of vessels with unique risks and injuries, and they are still a relatively new product on the market. The time for Congress to completely exclude PWC from the Act is now. As one court stated: "[M]uch of the complexity... is for the legislative wisdom to solve... realization that the general legislation on limitation may have harsh and oppressive impact in certain circumstances that may fairly and equitably be removed." (242) It is up to Congress to amend the Act by excluding PWC from its scope.

Sara Ashton LaRosa (*)

(*) J.D. 2017, Loyola University New Orleans College of Law; B.A. 2014, Mississippi State University.

(1.) Loosely based on Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225 (11th Cir. 1990).

(2.) Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225 (11th Cir. 1990).

(3.) Dennis J. Stone, The Limitation of Liability Act: Time to Abandon Ship?, 32 J. MAR. L. & COM. 317, 332 (2001).

(4.) 46 U.S.C. [section][section] 30501-30512 (2012).

(5.) 46 U.S.C. [section] 30505(a) (2012). For a full discussion of the statue and its legislative history, see infra section III.

(6.) 46 U.S.C. [section] 30506(e) (2012).

(7.) What You Need to Know Before Buying a Jet Ski, JET SKI PLUS BLOG, http://blog.jetskiplus.com/need-know-buy-jet-ski/ (last visited Mar. 1, 2017).

(8.) Michael B. McCauley, Limitation of Liability and Recreational Vessels, 16 TUL. MAR. L. J. 289, 295-96 (1992).

(9.) Lewis Herman, Limitation for Pleasure Craft, 14 J. MAR. L. & COM. 417, 419-20 (1983).

(10.) Quick facts about PWCs or Personal Watercraft, DISCOVER BOATING, http://www.discoverboating.com/resources/article.aspx?id=543 (last visited Apr. 3, 2017).

(11.) Personal Watercraft, Safety, And You, DISCOVER BOATING, http://www.discoverboating.com/resources/article.aspx?id=577 (last visited Apr. 3, 2017).

(12.) Personal Water Craft, Boat U.S. Foundation, http://www.boatus.org/study-guide/activities/pwc/ (last visited Apr. 3, 2017).

(13.) What is A Jet Ski?, WISEGEEK, http://www.wisegeek.org/what-is-a-jet-ski.htm (last visited on Apr. 3, 2017).

(14.) Id.

(15.) Id.

(16.) Id.

(17.) Stone, supra note 3, at 317.

(18.) Id. at 318 (stating that the "principle at the core of [the Limitation of Liability Act]... has been a part of the commercial law of the European continent").

(19.) Id.

(20.) Herman, supra note 9, at 419.

(21.) Stone, supra note 3, at 318.

(22.) Id.

(23.) Stone, supra note 3, at 318.

(24.) Id. at 319.

(25.) Id. at 320-21.

(26.) Id. at 321.

(27.) Id.

(28.) Stone, supra note 3, at 321.

(29.) Id.

(30.) Id. at 321-22.

(31.) Id. at 322.

(32.) Id.

(33.) Stone, supra note 3, at 323.

(34.) Stone, supra note 3, at 324.

(35.) Louis R. Harolds, Limitation of Liability and its Application to Pleasure Boats, 37 TEMP. L. Q. 423, 426 (1964).

(36.) McCauley, supra note 8, at 291.

(37.) Id.

(38.) Id. (referring to the MORRO CASTLE and MOHAWK).

(39.) Id.

(40.) Act of June 5, 1936, ch. 521, [section] 1, 49 Stat. 1479 (codified as amended at 46 U.S.C. [section] 183(f) (1988)); McCauley, supra note 8, at 291-92.

(41.) 46 U.S.C.[section] 30505(a) (2012).

(42.) "[I]f the vessel's negligence or unseaworthiness is the proximate cause of the claimant's loss, the [owner] must prove it had no privity or knowledge of the unseaworthy conditions or negligent acts." Omega Protein v. Samson Contour Energy E&P LLC (In re Omega Protein), 548 F.3d 361, 371 (5th Cir. 2008)

(43.) Stone, supra note 3, at 325.

(44.) Id. at 325-26.

(45.) 46 U.S.C. [section] 30501 (2012).

(46.) Id. [section] 30506(a).

(47.) Id. [section] 30506(b).

(48.) Stone, supra note 3, at 323 (arguing in favor of repealing the Limitation of Liability Act).

(49.) Id. at 325.

(50.) Id. at 317.

(51.) Id.

(52.) Id. at 323.

(53.) Stone, supra note 3, at 327.

(54.) Id.

(55.) McCauley, supra note 8, at 290.

(56.) Id. at 312.

(57.) Perry v. Haines, 191 U.S. 17, 30 (1903).

(58.) McCauley, supra note 8, at 292.

(59.) See Lewis Herman, Limitation for Pleasure Craft, 14 J. MAR. L. & COM. 417, 419-20 (1983).

(60.) Id. at 420.

(61.) 543 U.S. 481 (2005).

(62.) Id. at 484.

(63.) Id.

(64.) Stewart, 543 U.S. at 485.

(65.) Id.

(66.) Id.

(67.) Id.

(68.) Id.

(69.) Stewart, 543 U.S. at 485.

(70.) Id.

(71.) Id. at 485-86.

(72.) Id. at 486.

(73.) Id. at 489.

(74.) Stewart, 543 U.S. at 490-92.

(75.) Id. at 490.

(76.) Id. at 491-92.

(77.) Id. at 491.

(78.) Id. at 492.

(79.) Stewart, 543 U.S. at 492.

(80.) 119 U.S. 625,630(1887).

(81.) 271 U.S. 19, 22 (1926).

(82.) Stewart, 543 U.S. at 493.

(83.) Id.

(84.) Id. at 493-94.

(85.) Stewart, 543 U.S. at 495.

(86.) Id.

(87.) Id.

(88.) Id.; Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).

(89.) Stewart, 543 U.S. at 495.

(90.) Id. at 495-96 (citing Chandris, 515 U.S. at 363).

(91.) Id. at 496.

(92.) Id. (internal citations omitted).

(93.) Id.

(94.) Stewart, 543 U.S. at 493 (reversing the lower court).

(95.) David W. Robertson & Michael F. Sturley, Vessel Status in Maritime Law: Does Lozman Set a New Course?, 44 J. MAE. L. & COM. 393, 412-13 (2013).

(96.) Id. at 413.

(97.) Lozman v. City of Riviera Beach, Fla., 133 S. Ct. 735 (2013).

(98.) Id. at 740 (citing 1 U.S.C. [section] 3 (2012)).

(99.) 1 U.S.C. [section] 3 (2012).

(100.) Lozman, 133 S. Ct. at 740.

(101.) Id. at 741.

(102.) Id. at 739.

(103.) Id.

(104.) Id.

(105.) Lozman, 133 S. Ct. at 739.

(106.) Id. at 741.

(107.) Lozman, 133 S. Ct. at 741.

(108.) Id.

(109.) McCauley, supra note 8, at 289.

(110.) Id.

(111.) See Herman, supra note 9, at 419-20.

(112.) The Mamie, 5 F. 813, 813 (E.D. Mich. 1881).

(113.) Id.

(114.) Id. at 820-21.

(115.) McCauley, supra note 8, at 295-96. The Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuit Courts have held that pleasure craft owners can limit their liability.

(116.) Id. at 295.

(117.) Id. at 291.

(118.) Id. at 292.

(119.) Herman, supra note 9, at 422.

(120.) McCauley, supra note 8, at 292-93.

(121.) Herman, supra note 9, at 422.

(122.) McCauley, supra note 8, at 297.

(123.) Id. at 297 n.50.

(124.) Baldassano v. Larsen, 580 F. Supp. 415, 416 (D. Minn. 1984).

(125.) Baldassano, 580 F. Supp. at 416.

(126.) Id. at 417.

(127.) Id.

(128.) Id.

(129.) Id. at 418 (citing Coryell v. Phipps, 317 U.S. 406 (1943); Just v. Chambers, 312 U.S. 383 (1941); The Linseed King, 285 U.S. 502 (1932); Pritchett v. Kimberling Cove, Inc., 568 F.2d 570, 573 n.4 (8th Cir. 1977)).

(130.) Baldassano, 580 F. Supp. at 417 (citing 7a Moore's Federal Practice, 2405, 4408-09; Harolds, supra note 35, at 428).

(131.) Id. at 418.

(132.) Id. at 419.

(133.) Id.

(134.) Id.

(135.) Baldassano, 580 F. Supp. at 420.

(136.) McCauley, supra note 8, at 295. The Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuit Courts have that held pleasure craft owners can limit their liability.

(137.) In re Guglielmo, 897 F.2d 58, 61 (1990).

(138.) Id. at 59.

(139.) Id.

(140.) Id.

(141.) Id.

(142.) In re Guglielmo, 897 F.2d at 59.

(143.) Id.

(144.) Id. at 60.

(145.) Id.

(146.) Id. (citing 42 U.S.C. [section] 30508 (2012), formerly codified at 46 U.S.C. [section] 188) (internal quotations omitted).

(147.) In re Guglielmo, 897 F.2d at 60.

(148.) Id.

(149.) Id.

(150.) Id.

(151.) Id.

(152.) In re Guglielmo, 897 F.2d at 61.

(153.) Id.

(154.) McCauley, supra note 8, at 314.

(155.) Kays, 893 F.2d 1225.

(156.) Id. at 1230.

(157.) Id. at 1226.

(158.) Id.

(159.) Id.

(160.) Kays, 893 F.2d at 1226.

(161.) Id. at 1227.

(162.) Id. at 1228.

(163.) See generally McCauley, supra note 8, at 291.

(164.) Kays, 893 F.2d at 1228.

(165.) Id. at 1229.

(166.) Id.

(167.) Nassau Bay Water Sports, Inc. v. McClelland, 1995 U.S. App. Lexis 42653, at *9-10 (5th Cir. 1995).

(168.) Id. at *l-2.

(169.) Id. at *2.

(170.) Id. at *l-2.

(171.) Id. at *2.

(172.) McClelland, 1995 U.S. App. Lexis 42653, at *3.

(173.) Id. at *5.

(174.) Id.

(175.) Id. at *7-8 (citing Gibboney v. Wright, 517 F.2d 1054 (5th Cir. 1975) (holding that a racing sloop owner could limit his liability)).

(176.) Id. at *7 (citing Kays, 893 F.2d 1225).

(177.) McClelland, 1995 U.S. App. Lexis 42653, at *8-9; In Re Guglielmo, 897 F.2d 58.

(178.) McClelland, 1995 U.S. App. Lexis 42653, at *9.

(179.) Id. at *9-10.

(180.) Stewart, 543 U.S. at 492.

(181.) Carnival Cruise Lines, Inc. v. United States, 404 F.3d 1312, 1313 (Fed. Cir. 2005) (internal quotations omitted).

(182.) Id. at 1314.

(183.) Stewart, 543 U.S. at 484.

(184.) Choat v. Kawasaki Motors Corp., 675 So. 2d 879, 883 (1996).

(185.) See generally, Eobertson & Sturley, supra note 95, at 456 ("[T]he existence of in rem jurisdiction depended on the vessel status of the craft.").

(186.) Lozman, 133 S. Ct. at 740.

(187.) Id. at 743. The District Court found that the houseboat was not a vessel; therefore, there was no admiralty jurisdiction. Accordingly, the court dismissed for lack of jurisdiction. The jurisdictional issue was addressed by the Eleventh Circuit and the Supreme Court.

(188.) Id.

(189.) 46 U.S.C. [section] 30101 (2012).

(190.) Robertson & Sturley, supra note 95, at 456.

(191.) Choat, 675 So. 2d at 883.

(192.) Lozman, 133 S. Ct. at 743-44 ("Further, our examination of the purposes of major federal maritime statutes reveals little to classify floating homes as 'vessels.'... Certain admiralty tort doctrines can encourage shipowners to engage in port-related commerce." (citing 45 U.S.C. [section] 30505 (2012); Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 269-270 (1972))).

(193.) Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 538 (1995).

(194.) Jerome B. Grubart, 513 U.S. at 538 (citing Sisson v. Ruby 497 U.S. 358, 363 (1990)).

(195.) Id. at 539.

(196.) Id. at 539-540.

(197.) See Id.

(198.) Id. at 539. Water from the Chicago River flooded freight tunnels that ran under the river, causing Chicago-area homes to flood. The situation had the potential to disrupt maritime commerce because it could cause an issue with the navigability of the river.

(199.) Foremost Ins. Co. v. Richmond, 457 U.S. 668 (1982).

(200.) Lozman, 133 S. Ct. at 741.

(201.) Robertson & Sturley, supra note 95, at 455 (quoting Lozman, 133 S. Ct. at 745).

(202.) Id.

(203.) Id.

(204.) Lozman, 133 S. Ct. at 741. The houseboat could not store or generate electricity, had no "steering mechanism" or rudders, the hull was unraked, and it drafted only 10 inches.

(205.) Robertson & Sturley, supra note 95 at 499.

(206.) Id. at 478.

(207.) Conversation with Charles W. Morton, former member of the United States Coast Guard, Facebook Messenger (Jan. 30, 2016, 10:00 PM).

(208.) Lozman, 133 S. Ct. at 741.

(209.) The division on personal watercraft rental is at: ORANGE BEACH, ALA. CODE, art. II, div. 2 (2003). The article on commercial vessel rental is at: ORANGE BEACH, ALA. CODE, art. III (1993).

(210.) ORANGE BEACH, ALA. CODE, art. III, [section] 78-100 (1993).

(211.) CITY OF SANDUSKY, OHIO, CODE, pt. 5, ch. 553.02(a)(7) (2015).

(212.) Id. ch. 553.01(a)(1).

(213.) Id. ch. 553.26.

(214.) Id. ch. 553.01.

(215.) Id.

(216.) CITY OF SANDUSKY, OHIO, CODE, pt. 5, ch. 553.01 (2015).

(217.) LA. REV. STAT. ANN. [section] 14:2(A)(3) (2016).

(218.) 2 FED. JURY PRAC. & INSTR. [section] 25:12 (6th ed.).

(219.) Id.

(220.) United States v. Gibson, 896 F.2d 206, 210 (6th Cir. 1990) (affirming a conviction for assault with a dangerous weapon when the defendant attempted to run over a police officer with his car).

(221.) Id. at 208.

(222.) Id. at 210.

(223.) Id. at 209-10.

(224.) Kays, 893 F.2d 1225.

(225.) Herman, supra note 9, at 419-20.

(226.) Baldassano, F. Supp. at 419.

(227.) Id.

(228.) In re Lowing, 635 F. Supp. 520, 526 (1986) (citing Gibboney v. Wright, 517 F.2d 1054, 1057 (5th Cir. 1975)).

(229.) Id. (citing Richards v. Blake Builders Supply Inc., 528 F.2d 745, 748 (4th Cir. 1975)).

(230.) Baldassano, 580 F. Supp. at 420.

(231.) Id. at 419.

(232.) Id.

(233.) Id.

(234.) Id.

(235.) McCauley, supra note 8, at 289.

(236.) Id. at 291. The 1936 change to the statute is commonly called the "loss of life amendment."

(237.) In re Guglielmo, 897 F. 2d at 60.

(238.) Complaint of Tracey, 608 F. Supp 263, 268 (D. Mass. 1985).

(239.) Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, 821-22 (Harry W. Jones ed., 2d ed. 1975).

(240.) Id. "Judicial expansion of the Limited Liability Act at this date seems especially inappropriate. Many of the conditions in the shipping industry which induced the 1851 Congress to pass the Act no longer prevail. And later Congresses, when they wished to aid shipping, provided subsidies paid... by injured persons."

(241.) See generally Baldassano, 580 F. Supp. 415; In re Lowing, 635 F. Supp. at 526. See generally Gilmore & Black, supra note 239, at 821-22 (Harry W. Jones ed., 2d ed. 1975). "[J]udicial attitudes are important. There is at least some reason to believe that the judicial attitude in the second half of the twentieth century will be on the whole hostile to the limitation idea...."

(242.) Petition of Madsen, 187 F. Supp. 411, 413 (1960) (citing Petition of Colonial Trust Co., 1955 A.M.C. 1290).
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