Who is in Charge if Legally Boarded?

[markpierce]

So far, the USCG has only hand-waived friendly signals to us, and scooted on to more important missions.

[markpierce]

Originally Posted by markpierce

So far, the USCG has only hand-waived friendly signals to us, and scooted on to more important missions.

[williamtl]

The U.S. Coast Guard Boarding Policy:
Title 14 section 89 of the United States Code authorizes the U.S. Coast Guard to board vessels subject to the jurisdiction of the United States, anytime, any place upon the high seas and upon any waterway over which the United States has jurisdiction, to make inquires, examinations, inspections, searches, seizures, and arrests. The U.S. Coast Guard does not require a warrant to conduct search, seizures, arrests over any United States Waterway or high seas. The U.S. Coast Guard also have full legal law enforcement power on any land under the control of the United States, as needed to complete any mission.

The following applies to the USA only.

This will be the law of the land until 1 of a couple things happen.

1) congress revokes, repeals or modifies this law. I don't think this is likely in a post 9/11 world. The various interests that want this to stay in place are much larger than those who would like it to go away. I am trying to stay away from the political so will stop there.

Or

2) Someone who has been boarded decides to sue the government for violating their constitutional rights. Here is what it would look like. It would be a federal case (even if started in a state court, I can't imagine it would stay there very long). An experienced constitutional litigator would choose the federal district based on not only the initial judges, but the appellate ones as well. Note that the location of the boarding might constrain this some, but if boarded some distance off the coast or in international waters, there is some wiggle room for deciding in which forum the initial filing could be made.

Regardless of who wins at the trial court, I would expect this to be appealed. At least, I wouldn't advise someone starting if you were not prepared to "take it all the way o the Supreme Court."

Again, regardless of who wins on appeal, there will likely be a request to SCOTUS to hear it. Given they only hear about 80 cases a year, ...

There may be other ways but I think these are the two most likely.

Funding this would be very expensive. However, for someone,or maybe a group, there may be another way to have your day in court.

There are various groups who look for cases like this, if for no other reason than to try and curtail (tweak?) the federal government. Another option might be a law school that has a strong 4th amendment or admiralty discipline and pro bono program.

With all that said, this would be a multi year endeavor.

[Sailorbob8599]

Re: the subject of Coast Guard, Customs and Excise Officers

I recently cleaned out some boxes of “stuff” collected over many years of boating when I came across the following and decided it might be of common interest to the community. It simply proves boaters of all kinds throughout the years can be at odds with the “authorities”.
It is a photo of a “framed letter” to be seen on a wall of the “Jamaica Inn” (purported to be the haunt of pirates & smugglers), located on Bodmin Moor, Cornwall, UK … the Inn was made famous in a book by Daphne Dumaurier. … I shall reprint the letter in its entirety as the photo is rather hard to read.

To Captain Bunsack on board Speedwell revenue Cutter, now lying at Fordingbridge.
Sir,
Damn thee and God Damn thy two Purblind Eyes thou Buger and thou Death looking son-of-a-bitch. O that I had bin there (with my company) for thy sake when thou tookes These Men of Mine on Board the Speedwell Cutter on Monday 14 Dec;
I would cross thee and all thy Gang to Hell wher thou belongest thou Devil Incarnate. Go Down thou Hell Hound into thy Kennell below & Bathe thy Self in that Sulpherous Lake that has bin so long Prepared for such as thee for for it is time the World was rid of such a Monster. Thou art no man but a Devil thou fiend O Lucifer. I hope thou will soon fall into Hell like a star from the Sky; there to lie (unpitied) & unrelented of any for Ever & Ever Which God Grant of his Infinite Mercy Amen.
J. Spurier
Fordingbridge - Jan 32, 1700 & fast asleep.
__________________________________________________ ___________
Copied from the original found in Poole Custom House (Dorset, England).
__________________________________________________ ___________

I’m assuming the spelling to be correct as of the day it was written. Either that or, he did not excel at writing or spelling. Another point of interest is the date when he signed this epistle. It seems they may have had 32 days in January of 1700. Also, it seems strange in this day and age to end his letter by saying “& fast asleep” after the date.
Other than that, I would say he wasn’t overly impressed with the revenue Captain arresting his crewmen.

[Stu Jackson]

Originally Posted by Sailorbob8599

Really, this is no different to police coming into your land based home on a search warrant.

Could you perhaps explain how you think this is the same?

[Sailorbob8599]

Originally Posted by Stu Jackson

Could you perhaps explain how you think this is the same?

I'm referring to the fact you would find you're not at liberty to move around your own home should the police need to perform a search of your home on a warrant. In fact, you may be contained in one room, or even be told to leave your home while the search is in progress.
They have the authority to remove material from your home if they wish eg computers etc if they believe it will assist them in their investigations.it all depends on the severity of the problem (crime) they are investigating.

[slipaway]

Originally Posted by jmschmidt

As is all too typical on this forum none of the responses provide a complete or even any answer to the question, “Who’ is in charge…” if boarded by an authorized marine agency. One was pretty close.

The answers are:

Here’s another news flash: The US Coast Guard has the authority to administer a “Rules of Road” test on the spot, at any time, to any person the boarding officer determines “is in charge.”

As for “water cops” I have a laminated card that I hand to any water cops that want to board my vessel. It reads:

WARNING
THIS IS A DOCUMENTED VESSEL OF THE UNITED STATES
YOU HAVE NO AUTHORITY TO BOARD THIS VESSEL WITHOUT PROBABLE CAUSE
IF YOU INSIST ON DOING SO THE MASTER OR OWNER RESERVES THE RIGHT TO ENTER A LEGAL COMPLAINT IN A FEDERAL COURT WHERE YOU WILL BE REQUIRED TO APPEAR AND SHOW CAUSE FOR YOUR ACTIONS.
Have a nice day.

A couple of comments on this post... first the CG has no "authority to administer a rules of the road test" during a boarding. There is no statutory or regulatory authority for such an action, nor have I ever heard of anything like this occurring.

Second comment... being a US documented vessel affords no protection or immunity from being boarded by authorized law enforcement personnel from a state or US locality assuming those authorities have jurisdiction over the waters the vessel is in. Whether or not "probable cause" is required by these authorities is a matter of state law. Finally, there is no such thing as a "legal complaint in Federal Court." One may be able to proceed in the state if some violation of state law or procedure occurred but the boarding of a US documented vessel by state authorities even if improper under state law does not create a Federal cause of action.

How do I know... 30+ years as a CG boarding officer and attorney.

Lot's of "this is the law" here but one really should do their research and have the citations to back it up!

[Jim Cate]

Slipaway,thank you for an informed rebuttal to the hot air that has been blowing through this thread.

Jim

PS... Welcome to CF. I look forward to your further contributions.

[Tayana42]

Slipaway, welcome and add my thanks for bringing your experience and actual knowledge to CF. Thanks also for your service to the boating public in your 30 years in the Coast Guard. I for one am appreciative.

[IslandHopper]

Well that's one way of keeping them off, am guessing they think the 30 month sentence is preferable to what they would have got if they had allowed the CG to board.....

Two Canadian Sailors Sentenced for Setting Their Sailboat on Fire | NBC Southern California

[leftbrainstuff]

Originally Posted by slipaway

A couple of comments on this post... first the CG has no "authority to administer a rules of the road test" during a boarding. There is no statutory or regulatory authority for such an action, nor have I ever heard of anything like this occurring.

Second comment... being a US documented vessel affords no protection or immunity from being boarded by authorized law enforcement personnel from a state or US locality assuming those authorities have jurisdiction over the waters the vessel is in. Whether or not "probable cause" is required by these authorities is a matter of state law. Finally, there is no such thing as a "legal complaint in Federal Court." One may be able to proceed in the state if some violation of state law or procedure occurred but the boarding of a US documented vessel by state authorities even if improper under state law does not create a Federal cause of action.

How do I know... 30+ years as a CG boarding officer and attorney.

Lot's of "this is the law" here but one really should do their research and have the citations to back it up!

Is this question easier to answer?

So in what situation would the USCG not be legally allowed to board a recreational vessel?

In Australia our government has used special forces to board and take command of a Norwegian flagged vessel that refused to obey the order to not offload refugees. So basically there are no restrictions in practice.

We don't have a coastguard in Australia but customs, coastwatch and border control forces have carte blanche to board any vessel suspected of attempting to illegally enter Australia.

[slipaway]

Just to add some info because there has been lots of discussion of "water cops" and the need (or not) for them to have probable cause to stop and board your boat. While we can all appreciate the opinions and (sometimes strong) feelings folks have regarding these types of inspections and intrusions, it is important to remember that each state is likely to have it's own legal standards either in statute or court decision. We can't just issue a blanket statement that probable cause is needed everywhere. For example, in Virginia, there is no "probable cause" requirement but rather a "reasonable suspicion" standard (which is less then probable cause). VA state law also permits conservation and Marine Police officers to stop and board to check for fishing licenses and to conduct boating safety checkpoints with no probable cause needed (Code of Virginia 29.1-745). There are other states where the standard for being stopped and boarded is less than probable cause. There is a pretty good list of some of these at: NASBLA. So, as with most things, it pays to know what the specific rules are where you boat (or transit through) to avoid any unfortunate misunderstandings or confrontations. The way to address disagreement with these rules and court holdings is through our legislators and not with the enforcement officers.

[Wotname]

Originally Posted by leftbrainstuff

Is this question easier to answer?

So in what situation would the USCG not be legally allowed to board a recreational vessel?

In Australia our government has used special forces to board and take command of a Norwegian flagged vessel that refused to obey the order to not offload refugees. So basically there are no restrictions in practice.

We don't have a coastguard in Australia but customs, coastwatch and border control forces have carte blanche to board any vessel suspected of attempting to illegally enter Australia.

Interesting example but I'm not sure it illustrates that there are no restrictions in practice. In this instance, it was well known that the refugees were on board so it all boiled down to whether the refugees were entering illegally or not. I don't recall if this aspect was ever tested in court or not. I seem to recall the vessel was still in international waters when boarded with the intention of not letting it enter Australian waters - but my memory is hazy about the fine detail...

I sort of recall the master was advised to proceed to any other country or return to Norway and he said he had to continue to Australia or his ship and crew were in danger of being overpowered by the refugees. The Australian government helped him out with maintaining security on board!

If there were no suspected crime on board, I pretty sure any Australian force cannot board any non Australian flagged ship on the high seas.

[Wotname]

Originally Posted by IslandHopper

Well that's one way of keeping them off, am guessing they think the 30 month sentence is preferable to what they would have got if they had allowed the CG to board.....

Two Canadian Sailors Sentenced for Setting Their Sailboat on Fire | NBC Southern California

Again interesting. The article suggests the vessel was in international waters but this is not spelled out.

If so, surely one is allowed to burn one's own boat and I fail to see how the CG was in danger in anyway.

If in USA waters, then I can see why this went the way it did.

[slipaway]

Originally Posted by leftbrainstuff

Is this question easier to answer?

So in what situation would the USCG not be legally allowed to board a recreational vessel?

Under current US law, the US Coast Guard may legally board any US vessel- recreational or otherwise- virtually anywhere; i.e. all US navigable waters subject to Federal jurisdiction, on the high seas and technically even in another country's territorial sea although that is virtually never done due to international law sovereignty considerations unless the other country gives permission. One limitation is waters that were solely subject to a state's jurisdiction. The most relevant statutory authority is contained in Title 14, US Code, Section 89 (though there are other federal statutes which can give the USCG boarding authority in some circumstances). There may be "policy" limitations that limit CG boarding practice as well as some limits that some federal courts imposed at times, however the 14 USC 89 authority remains very broad. While I know there are legitimate 4th Amendment concerns, it is however, the current state of the law.