The opinion of the court was delivered by: BRIEANT
In this In rem action, plaintiff seeks to enforce a maritime lien for wharfage rendered at its marina to the yacht SEA CASA, currently being used as a houseboat. On April 20, 1979 the houseboat was arrested by the U.S. Marshal pursuant to an Ex parte order issued pursuant to Rule C(3) of the Supplementary Rules for Certain Admiralty and Maritime Claims. Thereafter, by motion by order to show cause, claimant John Boldt, as owner or agent for the houseboat SEA CASA, In rem defendant, has mounted an attack upon the powers and jurisdiction of this Court granted under Article III, § 2 of the United States Constitution, by which the federal courts assert judicial power extending "to all Cases of admiralty and maritime Jurisdiction."
The jurisdictional facts are not in dispute. The defendant SEA CASA is a 35 foot fiberglass houseboat built in 1971. Since June of 1977 and until the events described below, the SEA CASA was berthed at the 79th Street Marina in the Hudson River, operated by plaintiff as a public wharf, under a lease or concession agreement from the City of New York, which fixes the charges for dockage and marine services.
Mr. Boldt asserts, and the plaintiff does not deny, that the vessel has been his "sole residence and home since June of 1977." He states that City and New York State officials recognize the 79th Street Marina as his legal place of residence, as does the United States Post Office, that his residence on the vessel at this pier has been recognized by the Board of Elections as a legal voting residence, and on one occasion, City Housing Authorities relocated a person whose apartment house had been destroyed by fire, to a residence aboard another houseboat. He avers that he has no other residence or place to live other than the houseboat. Unmarried, and age 35, he is employed as a bartender, and prior to June of 1977 had lived for some time at plaintiff's Marina aboard another vessel.
Plaintiff claims to have furnished what it describes as transient dockage service of the reasonable value of $ 3,888 to the SEA CASA. This claim represents an account for wharfage or dockage. Claimant admits owing $ 665 as dockage and asserts that there are set-offs available to the vessel. Asserting a maritime lien against the SEA CASA, In rem, plaintiff caused an Ex parte warrant for the arrest of this vessel to be issued by the Clerk of this Court on April 20, 1979, and the warrant was delivered to the United States Marshal, who seized the vessel. An Ex parte order was signed the same date authorizing the Marshal to deliver the vessel to a custodian appointed for possession and safekeeping of the arrested vessel by this Court.
Mr. Boldt asserts that because of the nature and current use of this particular vessel, the furnishing of dockage services to her will not provide a basis for a maritime lien, or the exercise by this Court of its maritime jurisdiction. This assertion has no legal basis.
The SEA CASA is a "vessel" within the statutory definition of Title 1, United States Code, § 3, which reads as follows:
"s 3. "Vessel', as including all means of water transportation.
The 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."
Cases referring to houseboats have uniformly held that a houseboat is a vessel in the context of a claim against the houseboat In rem asserting a lien for dockage under the Maritime Lien Act, 46 U.S.C. § 971. The best analysis of the rule is found in Miami River Boat Yard, Inc. v. 60' Houseboat, Ser. # SC-40-2860-3-62, 390 F.2d 596, 597 (5th Cir. 1968). There, Chief Judge Brown of that Circuit expressed the rule as follows:
"A houseboat is nonetheless a boat because, as its name implies, it affords a water-borne place to live with the added advantage of at least some maritime mobility. That she has no motive power and must, as would the most lowly of dumb barges, be towed does not deprive her of the status of a vessel.
The Houseboat was a vessel capable of being subjected to a maritime lien and the District Court was in error in holding that it lacked subject-matter jurisdiction over the vessel in rem. Pleason v. Gulfport Shipbldg. Corporation, 5 Cir., 1955, 221 F.2d 621, 1955 A.M.C. 794; Campbell v. Loznicka, 5 Cir., 1950, 181 F.2d 356, 359, 1950 A.M.C. 756; The Showboat, D.Mass., 1930, 47 F.2d 286, 1931 A.M.C. 19; The Ark, S.D.Fla., 1926, 17 F.2d 446, 1927 A.M.C. 38; Cf. The Jack-O-Lantern, 258 U.S. 96, 42 S. Ct. 243, 66 L. Ed. 482."
Section 971 of Title 46, United States Code, ...