Page:Lozman v. City of Riviera Beach (2013).pdf/17

14 Rh makes such a request. Brief for Respondent 18, 49, 52. And the only potentially relevant factual dispute the dissent points to is that the home suffered serious damage during a tow. Post, at 10–11. But this would add support to our ultimate conclusion that this floating home was not a vessel. We consequently see nothing to be gained by a remand.

Although we have focused on the phrase “capable of being used” for transportation over water, the statute also includes as a “vessel” a structure that is actually “used” for that transportation. 1 U.S.C. §3 (emphasis added). And the City argues that, irrespective of its design, Lozman’s floating home was actually so used. Brief for Respondent 32. We are not persuaded by its argument.

We are willing to assume for argument’s sake that sometimes it is possible actually to use for water transportation a structure that is in no practical way designed for that purpose. See supra, at 12–13. But even so, the City cannot show the actual use for which it argues. Lozman’s floating home moved only under tow. Before its arrest, it moved significant distances only twice in seven years. And when it moved, it carried, not passengers or cargo, but at the very most (giving the benefit of any factual ambiguity to the City) only its own furnishings, its owner’s personal effects, and personnel present to assure the home’s safety. 649 F.3d, at 1268; Brief for Respondent 32; Tr. of Oral Arg. 37–38. This is far too little actual “use” to bring the floating home within the terms of the statute. See Evansville, 271 U.S., at 20–21 (wharfboat not a “vessel” even though “[e]ach winter” it “was towed to [a] harbor to protect it from ice”); see also Roper v. United States, 368 U.S. 20, 23 (1961) (“Unlike a barge, the S.S. Harry Lane was not moved in order to transport commodities from one location to another”). See also supra, at 6–11.