If a particular Federal statute provides for extraterritorial application, other than under the "Special Maritime and Territorial Jurisdiction," then it may apply to conduct of foreign vessels (or persons on board foreign vessels) outside U.S. territorial waters. But, carriage of narcotic drugs by foreign vessels on the high seas is not a crime under U.S. law.

If a vessel on the high seas has, by its conduct, been assimilated to a stateless character, then boarding and attendant detention is proper in order to determine true nationality. In fact, article 22 of the CHS [Convention on the High Seas] specificially makes allowances for boarding under these conditions. Further, force may be used if necessary to accomplish this boarding, as it is conducted for purposes of enforcing U.S. law (14 U.S.C. §89). After determination of true nationality, in a case where there is no indication that there has been a violation of a U.S. law which provides for extraterritorial jurisdiction over foreign vessels, then further Coast Guard intervention will normally be inappropriate. Nevertheless, subsequent detention of the vessel, after this determination has been made, would not violate principles of international law, as the vessel remains "stateless" by international convention, regardless of whether it is recognized as being a foreign vessel for purposes of application of U.S. law. And further detention would be reasonable, if made at the specific request of the true flag state. If the vessel's activities violate the law of the true state of nationality, but that state lacks the means of enforcing its law, then the United States may, upon diplomatic request, assist the foreign nation by further detention of the vessel. Further, detention is reasonable in the interim period, after boarding, while awaiting the instructions of the foreign state. Use of force is appropriate to accomplish this temporary detention. Decisions of this nature will be made only when the state of true nationality makes a formal request to DOS for assistance.

Pursuit of the Yellowfin was reasonable after its display of a U.S. flag, as the United States has jursidiction over vessels of its registry, wherever they may be. Boarding of the vessel by the Coast Guard was permissible after it displayed a second flag, since at this point it was assimilated to the status of a stateless vessel under the 1958 High Seas Convention. The subsequent detention on the high seas, pending determination of true nationality, was reasonable under the circumstances even though there was no evidence of a violation of U.S. law, because the vessel remained stateless under international law and, therefore, was subject to the jurisdiction of the United States as an intervening state. Detention of a stateless vessel pending determination of its true state of nationality is consistent with the meaning of the 1958 High Seas Convention. Further, forced movement of the vessel into a U.S. port (and into U.S. territorial jurisdiction) was appropriate in light of the delayed contact with the true flag state and the prevailing sea conditions. It was reasonable to escort the Yellowfin to protected waters until resolution of this question could be made. This was not a seizure (which is permissible only for violation of a U.S. law

which specifically provides for this type of enforcement action), as seizures of vessels are directed toward subsequent Federal criminal prosecution. Rather, this was a temporary detention of the vessel, which was a proper exercise of U.S. authority, permitted under international principles of law.

Dept. of Transportation, Coast Guard Law Bulletin, No. 415, Sept. 1976, pp. 7-10.

In a circular diplomatic note, dated February 3, 1976, to Chiefs of Mission in Washington, the Department of State set forth, for the guidance of foreign tribunals seeking international judicial assistance, the types of judicial assistance which are provided by the United States, subject to the condition of reciprocity and the limitations imposed by U.S. law. The text of the note follows:

The Secretary of State presents his compliments to Their Excellencies, Messieurs and Mesdames the Chiefs of Mission, and has the honor to inform them of the types of judicial assistance afforded to foreign tribunals and to litigants before such tribunals by the Government of the United States.

Service of Judicial Documents

The first category of assistance concerns the formal delivery of legal documents in the United States. Upon the request of the Department of State, the Department of Justice, through the United States Marshals Service, will attempt to deliver legal documents to persons or entities within the jurisdiction of the United States and, if successful, will return to the requesting authority a certificate stating the time and place of service. The Department of State will transmit requests for service of process received through diplomatic channels to the Department of Justice for execution provided:

-the request originates with a foreign tribunal or other judicial authority;

-the document is issued in connection with a judicial proceeding pending before such tribunal or judicial authority;

-the request and the document to be served are translated into English;

-two sets of the document and its translation are supplied (one set will be served and the other will be returned by the Marshals Service together with the proof of service);

-each request is accompanied by a check or money order in the amount of $15.00, payable to the Treasurer of the United States;

-a full name and street address is given for the individual or entity to be served (personal service cannot be made if only a post office box number is given); and

-every document issued for the purpose of notifying an individual of a hearing at which the individual's rights or obligations may be affected is received in the Department of State at least forty-five days prior to the date set for the hearing.

Requests for service transmitted through diplomatic channels need not be legalized or authenticated if the transmittal note confirms that the request emanates from a duly constituted tribunal or other judicial authority of the requesting country.

Documents conforming to the foregoing requirements will be forwarded promptly to the Department of Justice for service by the Marshals Service in the manner provided for the service of similar documents in domestic actions (see pertinent excerpts from Rule 4 of the Federal Rules of Civil Procedures, enclosure 1), unless another manner is specified in the request. The Marshals Service will make diligent efforts to serve the document, but if service cannot be made after three attempts, it will be returned together with a written statement showing the dates, times and the place where service was attempted. If the designated recipient has moved, the Marshals Service will try to ascertain the forwarding address and cause the document to be served at that address without additional charge to the requesting authority.

It should be noted that formal service of foreign judicial documents as set forth above does not, of itself, require the recognition or enforcement in the United States of any ensuing judgment which may be rendered by a foreign tribunal.

As regards delivery of foreign judicial documents in the United States generally, the United States has no objection to the informal delivery of such documents by members of diplomatic or consular missions, through the mails, or by private persons, provided no compulsion is used.

The Secretary wishes to direct the attention of the Chiefs of Mission to the existence of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on November 15, 1965, which offers a simplified and speedy method of serving foreign documents in the United States. The Convention is presently in force in the United States and provides for accession by other states.

Evidence

Obtaining evidence for use in a proceeding in a foreign tribunal is the second category of judicial assistance afforded to foreign tribunals and to litigants before such tribunals by the Government of the United States. (As used herein, evidence means the giving of testimony or statements, or the production of documents or other things.) The Department of State will forward requests for evidence to the Department of Justice for execution provided the request:

-emanates from a foreign tribunal or other judicial authority; -is translated into English, and two copies of the request and of the translation are furnished;

-specifies the names and addresses of the parties to the proceedings and the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;

-gives the full name, street address and relationship to the evidence of the person or entity from whom the evidence is sought; -specifies the evidence to be obtained with particularity (e.g., by listing the questions to be put to the witness or providing a

statement of the subject matter about which the witness is to be examined, or by identifying the documents or other objects to be produced); and

-is accompanied by a statement from the Embassy guaranteeing payment by the Embassy of costs incidental to execution of the request.

In criminal cases, in which the person to be examined is a defendant, suspect, or a potential defendant or suspect, the request should also set forth the testimonial privileges which may be available to such person under the law of the requesting state. Conforming requests will be transmitted to the Department of Justice for execution in the judicial district in which the subject of the request is located. A representative of the Department of Justice will communicate with the person or entity from whom the evidence is sought ("the witness"), and will request that the evidence be supplied voluntarily. If the witness accedes, his statement will be taken under oath or affirmation (under penalty of perjury) before a notary public. The statement will be returned to the requesting authority, together with a copy of the request. If the evidence sought is a document or other thing, and is provided voluntarily by its custodian, it will be transmitted to the requesting authority in the same manner. (The custodian may require, as a condition of his cooperation, payment of costs by the Embassy, and assurance that the evidence will be returned.)

If the witness declines to produce the evidence voluntarily, a representative of the Department of Justice will petition the competent Federal district court to apply appropriate measures of compulsion requiring the witness to produce the evidence. If the petition is granted, the court will enter an order authorizing the issuance of appropriate subpoenas and appointing a "commissioner" to secure the evidence. (Under United States law a judge seldom, if ever, secures the evidence himself.) The "commissioner" may be a person designated by the requesting authority. If the witness fails to obey the court order he may be punished for contempt of court, unless the information sought is subject to a legally applicable privilege.

Requests for evidence transmitted through diplomatic channels need not be legalized or authenticated if the transmittal note confirms that the request emanates from a duly constituted tribunal or other judicial authority of the requesting country.

The Secretary of State wishes to note that there is no requirement that requests for judicial assistance be referred to the Department of State for execution; the Federal statute which authorizes Federal district courts to render assistance to foreign tribunals provides that such requests may be presented directly to the courts by "any interested person" (see enclosure 2). Direct presentation to a court of the United States does not, however, mean the mailing or transmitting of a request to a judge or to a clerk of the court; it means a formal presentation through counsel. The Secretary of State also wishes to point out that the United States does not object to the informal taking of testimony by members of diplomatic or consular missions, or by private counsel, from witnesses in the United States, provided the witness agrees voluntarily to give testimony and no compulsion, threats or

intimidation is used. If foreign officials, other than members of diplomatic or consular missions, engage in the securing of testimony in the United States, the Department of State should receive advance notification of that fact.

The Secretary of State further wishes to direct the attention of the Chiefs of Mission to the existence of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, adopted at the Eleventh Session of The Hague Conference on Private International Law on October 26, 1968, which is presently in force in the United States. The Convention facilitates the transmission and execution of evidence requests, accommodates the different methods which States use for this purpose, and permits the submission of requests in French or English. The Convention provides for accession by other states.

Other Requests

The Department of State receives from time to time a variety of requests from foreign tribunals asking, for example, that their judgments be executed; that custody or alimony decrees be enforced; that property in the United States be sequestered; that witnesses in the United States be compelled to attend hearings in a foreign tribunal; or that an investigation of certain matters be conducted by a court of the United States. Such requests are beyond the scope of the authority granted to the courts by law (see enclosure 2); foreign judgments, decrees or orders cannot be enforced in the United States by means of a request for judicial assistance, and the Department of State will return such requests unexecuted. Return of a request under these circumstances does not imply that a judicial remedy is not available in the United States; it simply means that the remedy cannot be had through the medium of letters rogatory. Under the laws of the United States, an individual seeking to enforce a foreign judgment, decree or order in this country must file suit before a competent court. The court will determine whether to give effect to the foreign judgment. As with most legal proceedings, it is necessary to retain counsel to conduct the suit.

In all cases, the Department's primary consideration will be the furtherance of the administration of justice through effective cooperation with the judicial authorities of other States, subject to the condition of reciprocity and the limitations imposed by United States law.

Enclosure 1

TITLE 28, UNITED STATES CODE, APPENDIX.

Rules of Civil Procedures

Rule 4.-Process

(c) By Whom Served. Service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose, except that a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.

(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows: