Applying the recently clarified “reasonable observer” test created by the Supreme Court in Lozman v. City of Riviera Beach, 133 S. Ct. 735 (U.S. 2013), the Southern District of New York determined that a floating drydock was not a vessel, because “no reasonable observer….would consider [the Drydock] designed to a practical degree for carrying people or things over water.” Fireman Fund Ins. Co., et al, v. Great American Insurance Co., et al., 1:10-cv-01653, Rec. Doc. 211. The Court agreed that the drydock was not designed to and did not regularly transport people or things over water. It lacked any independent ability to propel itself, navigational lights, life boats, or a wheel house. The drydock had been more or less permanently moored for the past few years.

In light of the Lozman decision, the Supreme Court also vacated and remanded Lemelle v. St. Charles Gaming Co., Inc., 2011-255 (La. App. 3 Cir. 1/4/12) writ denied, 2012-0339 La. 4/27/12, 86 So. 3d 627 and cert. granted, judgment vacated, No. 12-130, 2013 WL 215486 (U.S. Jan. 22, 2013). In this case, the Court of Appeal of Louisiana determined that a riverboat casino was not a vessel, because it was practically incapable of transportation over water, noting that the riverboat had been connected to the dock by lines and cables since 2001, had not sailed since 2001, and was no longer inspected by the Coast Guard. On remand, the Court of Appeal will apply the Lozman test to determine whether the riverboat casino was in fact capable of transportation over water.

Dated: February 6, 2013