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the basis of third party information regarding fishery law violations by foreign vessels. The decision regarding whether this information, in itself, is "reasonable cause" to believe a violation occurred depends on the nature of the information and the reliability of the third party. If the report emanates from a State fishery enforcement official, then the reliability criterion would be satisfied by virtue of the reliability inherent in his position as a law enforcement official. Decisions regarding the reliability of other third parties will have to be made on a case by case basis.

Because of the exigencies involved in at sea law enforcement it is impracticable to require a legal determination regarding the weight of the evidence of a suspected violation prior to seizure. The decision regarding seizure should not be based on the probability of successful prosecution; it should be based on the sound judgment of the prospective seizing official on scene, as supplemented by advice and instructions from the operational commander. As a rule of thumb, if it appears more probable than not that a section 1081 violation has occurred, then "reasonable cause" exists and seizure would be appropriate if a statement of "no objection" has been received.

Irrespective of whether a third party report is sufficient for a seizure, such information does provide an adequate legal basis for boarding foreign fishing vessels in U.S. jurisdictional waters. Coast Guard officers may board for inspection (and thereby detain) any foreign vessel in the territorial sea or the adjacent contiguous zone, under authority of 14 U.S.C. 89, if boarding is for law enforcement purposes, so long as the boarding is "reasonable" as that term is used in customary international law. In the case of foreign fishing vessels in U.S. jurisdictional waters (under express agreement or not) if there is any time during which the vessel could have engaged in prohibited fishing (i.e. if constant visual surveillance has not been maintained by the Coast Guard), then boarding for purposes of search/inspection is reasonable. There need not be any evidence of a fishery violation before boarding, so long as the potential for past undetected violations exists.

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The general authority for the Coast Guard to make arrests of vessel personnel for violation of U.S. laws is found at 14 U.S.C. 89. Under the statute, the evidentiary standard for lawful arrests without a warrant should be viewed as being the same as the standard for seizure of vessels (reasonable cause). However, this general power to make arrests has been qualified by the language of the Bartlett Act with regard to arrests for fishery violations. Under 16 U.S.C. 1083(d), an enforcement official may arrest an individual for violation of the provisions of 16 U.S.C. 1081, without a warrant, only if the violation is committed in the presence or view of the arresting official. Since criminal laws should be construed in the narrow sense, the language of the Bartlett Act controls. Therefore, the master of a foreign vessel may be arrested for operation of his vessel in violation of 16 U.S.C. 1081 only if the arresting officer actually observes this unlawful activity. Such an arrest may never be based solely on third party information.

Likewise, an arrest would never be appropriate absent a showing of an adequate evidentiary basis for seizure of the vessel.

The Coast Guard may initiate "hot pursuit" of a foreign vessel for violation of Federal fishery laws based solely on the report of a third party so long as commencement of the pursuit takes place in the waters over which the U.S. has fisheries jurisdiction, comprised of the territorial sea and the contiguous fisheries zone. This is true regardless of whether the violation occurred in the territorial sea or the contiguous fisheries zone. The evidentiary standard necessary for initiation of hot pursuit is dictated by article 23 of the Convention of the High Seas of 1958 (13 UST 2312; TIAS 5200; "hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State.") The "good reason" standard of this international agreement should be more liberally construed than the "reasonable cause" test for seizure. Again, subjective judgment must be used in the application of this standard. However, in the context of response to a third party report, if the third party appears to have had an opportunity to observe the violation, and if there is no reason to doubt his reliability, then hot pursuit of a vessel attempting to elude boarding would be appropriate.

Dept. of Transportation, Coast Guard Law Bulletin, No. 413, Mar. 1976, pp. 17-19.

Boarding and Search on High Seas

U.S. Flag Vessels

United States v. One (1) 43 Foot Sailing Vessel, 405 F. Supp. 879 (1975), decided by the U.S. District Court for the Southern District of Florida on December 8, 1975, upheld the authority of the U.S. Coast Guard under international law to board and search U.S. flag vessels on the high seas.

The United States brought a proceeding seeking forfeiture of the sailing vessel, which Coast Guard officers had boarded for a safety check and found to contain marijuana. The District Court ordered forfeiture. It held that since the ship was a U.S. flag vessel, the Coast Guard officers, who observed it proceeding on the high seas at nighttime without lights, had authority to board the ship for a safety investigation and if contraband were discovered in the process they had the right to search completely and seize the contraband. In this case, the Court said, not only was marijuana observed in plain view, but the overwhelming aroma of it in the confined space of the cabin would, in any event, have justified further examination. The Court stated:

The United States has a duty under international law to "effectively exercise its jurisdiction and control in administrative,

technical and social matters over ships flying its flag." Article 5, Convention on the High Seas, 15 United States Treaties 2313 (hereafter C.H.S.). On the high seas, only the vessels of the United States Government may exercise jurisdiction over United States flag vessels. Article 6, C.H.S. Since no nation may exercise sovereignty over the waters of the high seas, art. 1, Č.H.S., the maintenance of public order on the world's oceans depends upon effective control in accordance with their treaty obligations by the nations of the world over vessels flying their flag. Throughout history, governments have had a direct and special interest in the conduct and operation of their citizens' vessels and the immunity of such vessels on the high seas from interference by foreign governments. One method of ensuring that foreign governments do not interfere with the exercise of traditional freedoms of the seas by United States vessels requires the United States to exercise effective control over them as required by international law. Article 5, C.H.S.

In order that the United States may effectively exercise its domestic authority in the special maritime jurisdiction of the United States and carry out its obligations under international law, Title 14, United States Code, § 89(a) authorizes the Coast Guard:

[to] make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas. for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board, . . . examine the ship's documents and papers and examine, inspect, and search the vessel. . . . When . . . it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested. . . . 14 U.S.C. 89(a) (emphasis added).

When acting under this statute, Coast Guard boarding officers may enforce any law of the United States as an agent of the department or independent establishment charged with the enforcement of that law. Such powers are in addition to and not a limitation on their powers to enforce laws as Coast Guard Officers. 14 U.S.C.A. § 89(b)(c) (Supp. 1974). Therefore, express statutory authority exists for the action of the Coast Guard in stopping and inspecting the defendant vessel.

Foreign Flag Vessels

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On October 19, 1976, the U.S. Coast Guard boarded and seized in international waters a Panamanian flag vessel reportedly engaged in narcotic smuggling. The seizure was made with the consent of the Panamanian Government. The predominantly Colombian crew was subsequently returned to Panama for prosecution by the Panamanian authorities for violation of Panamanian law prohibiting trafficking in contraband narcotics aboard a vessel of Panamanian

registry. Kempton B. Jenkins, Acting Assistant Secretary of State for Congressional Relations, described the incident in a letter of December 6, 1976, to Senator Edmund S. Muskie, as follows:

The vessel in question, the Don Emilio of Panamanian registry, was reported to be carrying a cargo of illicit drugs which were allegedly taken on board during the vessel's call to the port of Cartagena, Colombia. Following its departure from Colombia, the vessel set a northeastward course and remained in international waters. According to information obtained from reliable informants, the contraband cargo was destined for the United States and Canada where it was to be picked up by intercept craft. The United States Coast Guard picked up and maintained surveillance of the vessel; however, the captain of the vessel apparently became aware of the surveillance and decided not to enter U.S. waters. The Coast Guard requested authority to board the vessel in international_waters. The Department of State contacted the Government of Panama to obtain its consent to board the vessel, citing the obligation to cooperate in the prevention of illicit narcotic trafficking imposed under the Single Convention on Narcotic Drugs 1961, as amended [TIAS 6298; 18 UST 1407] to which both countries are parties.

The Government of Panama consented to our request and authorized the Coast Guard to act as its agent to board the vessel and seize the illicit drugs. The vessel was boarded pursuant to this authority and a contraband cargo discovered. Prior to the boarding, the vessel appeared to be in some distress and upon boarding it, it was discovered that contaminated fuel had disabled the vessel. The Coast Guard towed the vessel to the Port of Miami, Florida, where the vessel was held for search by agents of the Drug Enforcement Administration. Approximately 35 tons of marijuana was found, removed from the vessel by the Drug Enforcement Administration and destroyed. A thorough investigation failed to produce sufficient evidence of violation of U.S. narcotic laws, particularly the conspiracy provisions, to warrant United States prosecution.

The Governments of Colombia and Panama were advised of the facts of the case and requested to indicate their respective interests in prosecuting those involved in this case. The crew of the vessel was predominantly Colombian and the contraband was alleged to have been loaded in Colombia. The Colombian Government expressed no desire to prosecute members of the crew for a violation of Colombian law; however, the Panamanian Government requested extradition of the crew to stand trial in Panama for the violation of Panamanian law. The crew has been returned to Panama where the Department understands criminal proceedings have been instituted.

The Department of State informed the Embassy of Panama in Washington, by note dated December 13, 1976, that, pursuant to

article IX of the U.S.-Panama Treaty of Extradition of May 25, 1904 (TS 445; 34 Stat. 2851; 10 Bevans 673), the United States was offering and agreeing to release the vessel Don Emilio to the Government of Panama, with the understanding that the vessel would be removed from its berth at the U.S. Coast Guard Station, Miami, Florida, no later than the following day.

Dept. of State File Nos. P76 0185-1943 and P76 0191-1209.

Vessels Assimilated to Stateless Status

Rear Admiral G.H. Patrick Bursley, Chief Counsel, U.S. Coast Guard, issued a legal opinion dated April 5, 1976, in which he defended the Coast Guard's enforcement action against the Yellowfin (Pn.), which had displayed two different flags while operating on the high seas and while under surveillance for engaging in the international transportation of narcotic drugs. According to Admiral Bursley's account, the Coast Guard, after sighting the suspected vessel in waters off the coast of Cuba without a flag and subsequently with a U.S. flag, had boarded the vessel. At that point the U.S. flag was replaced by a Panamanian flag and the crew alleged the vessel to be of Panamanian registry and themselves to be Colombians. When diplomatic communication was initiated, Panama and Colombia made conflicting claims to registry of the vessel, and the Yellowfin was escorted to Miami pending true determination of nationality.

In his opinion, Admiral Bursley noted initially that article 6 of the 1958 Convention on the High Seas (TIAS 5200; 13 UST 2312) provides that vessels displaying two or more flags may be "assimilated" to the status of a stateless vessel. He continued:

Assimilation of a vessel to a stateless character may terminate the legal protection offered by the state of true nationality, but it does not work to change its status to that of a U.S. vessel, nor does it end jurisdiction over the vessel by the true state of nationality. If a vessel has displayed two or more flags while operating on the high seas, the Coast Guard may detain and board the vessel for the purpose of determining its true state of registry. After determination of true nationality, the legal fiction of "statelessness" terminates, and the vessel becomes a foreign vessel for purposes of enforcement of U.S. law. Action taken subsequent to this determination, while the vessel remains on the high seas, must normally be based on either a specific request by the state of true nationality to assist in temporary detention of the vessel (e.g., CG enforcement activity in response to a request by the Secretary of State in accordance with 14 U.S.C. § 141), or upon a finding that the vessel has violated a law of the United States which provides for extraterritorial jurisdiction. In all other respects, this type of vessel must be treated as any other foreign flag vessel on the high seas. Use of force is permissible only in the enforcement of domestic law.

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