United States v. F/V TAIYO MARU, NUMBER 28, SOI 600, Civ. No. 74-101 SD

• Decision Date: 17 June 1975
• Docket Number: Cr. No. 74-46 SD.,Civ. No. 74-101 SD
• Citation: 395 F. Supp. 413
• Parties: UNITED STATES of America, Plaintiff, v. F/V TAIYO MARU, NUMBER 28, SOI 600, and her Tackle, Apparel, Furniture, Appurtenances, Cargo and Stores, Defendant. UNITED STATES of America v. Masatoshi KAWAGUCHI
• Court: U.S. District Court — District of Maine

395 F. Supp. 413

UNITED STATES of America, Plaintiff, v. F/V TAIYO MARU, NUMBER 28, SOI 600, and her Tackle, Apparel, Furniture, Appurtenances, Cargo and Stores, Defendant.

UNITED STATES of America v. Masatoshi KAWAGUCHI

Civ. No. 74-101 SD, Cr. No. 74-46 SD.

United States District Court, D. Maine, S. D.

June 17, 1975.

Peter Mills, U. S. Atty., John B. Wlodkowski, Asst. U. S. Atty., Portland, Me., Edward F. Bradley, Jr., Land & Natural Resources Div., U. S. Dept. of Justice, Washington, D. C., Charles E. Kuenlen, National Marine Fisheries Service, U. S. Dept. of Commerce, Gloucester, Mass., for plaintiff.

Fred C. Scribner, Jr., Portland, Me., Peter J. Gartland, Wender, Murase & White, New York City, for defendant.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

These two proceedings arise from the seizure of a Japanese fishing vessel, the F/V TAIYO MARU 28, by the United States Coast Guard for violation of United States fisheries law. On September 5, 1974, the Coast Guard sighted the TAIYO MARU 28 fishing at Latitude 43-35.9 North, Longitude 69-20 West. That point is approximately 16.25 miles off the coast of the State of Maine and approximately 10.5 miles seaward from Monhegan Island. It is conceded to be within the contiguous fisheries zone of the United States. 16 U.S. C. § 1092. The Coast Guard signaled the TAIYO MARU 28 to stop, but the vessel attempted to escape by accelerating toward the high seas. The Coast Guard immediately pursued and seized the vessel on the high seas at Latitude 42-58 North, Longitude 68-24 West, a point approximately 67.9 miles at sea from the mainland of the continental United States. The vessel was thereafter delivered to the port of Portland, and on September 6, 1974, the United States filed in this Court a civil complaint for condemnation and forfeiture of the vessel and a criminal information against the master, Masatoshi Kawaguchi. Both actions charge violations of 16 U.S.C. §§ 1081 and 1091 and seek imposition of the sanctions for such violations provided by 16 U.S.C. § 1082.¹ On October 4, 1974, Miho Maguro Gyogyo Kabushiki Kaisha of Shimizi, Japan, a corporation, as the sole owner and party entitled to possesion of the TAIYO MARU 28, appeared through local counsel and filed its demand for restitution and right to defend, and an answer to the complaint, in the forfeiture action.² On October 18, 1974, the master was arraigned and pleaded not guilty to the criminal information.³

Presently before the Court are identical motions for dismissal of the complaint and information filed by the claimant in the forfeiture action and the master in the criminal action (hereinafter collectively referred to as defendant). Defendant seeks dismissal of all proceedings on the ground that the Court lacks jurisdiction, since the vessel, unlawfully, was seized on the high seas in violation of the territorial limitations imposed by international agreements on the power of the United States to pursue and seize foreign vessels and arrest foreign nationals for violation of its domestic fisheries law. The issue thus presented is before the Court on the basis of the pleadings, supplemental stipulations, and the written and oral arguments of counsel.⁴

For the reasons to be stated, defendant's motions to dismiss for lack of jurisdiction are denied.

I Summary of Facts and Contentions of the Parties

There is no dispute as to the events, recited above, which led to the seizure of the TAIYO MARU 28. For the purposes of the instant motions, the following undisputed facts are significant: (1) On September 5, 1974, the United States Coast Guard sighted the TAIYO MARU 28, a commercial Japanese fishing vessel, within waters which the United States claims as part of its contiguous fisheries zone, and had reasonable cause to believe that the vessel was fishing in the zone in violation of United States fisheries law; and (2) at that point, the Coast Guard signaled the TAIYO MARU 28 and, after giving immediate and continuous hot pursuit, effected seizure of the vessel on the high seas.

The United States contends that, by fishing in the contiguous fisheries zone, the TAIYO MARU 28 and her captain violated the Bartlett Act, 16 U.S.C. § 1081 et seq., and the Contiguous Fisheries Zone Act, 16 U.S.C. § 1091 et seq., and that international law permits, and United States law authorizes, the hot pursuit of a foreign vessel from the contiguous fisheries zone and the seizure of the vessel on the high seas for violation of domestic fisheries law. Defendant's position is that this Court lacks jurisdiction over the TAIYO MARU 28 and her master, because the vessel was seized on the high seas in violation of the 1958 Geneva Convention on the High Seas, opened for signature April 29, 1958, 13 U.S.T. 2312 (entered into force September 20, 1962), a multilateral treaty agreement to which both Japan and the United States are parties signatory.

II The Statutes Involved

By the Bartlett Act, enacted in 1964, Congress made it unlawful for any foreign vessel, or for the master of such a vessel, to engage in fishing within the territorial waters of the United States, or "within any waters in which the United States has the same rights in respect to fisheries as it has in its territorial waters . . . except . . . as expressly provided by an international agreement to which the United States is a party." 16 U.S.C. § 1081.⁵ The Bartlett Act established criminal penalties for violators and provided for the seizure and forfeiture of any vessel and its catch found in violation. 16 U.S.C. § 1082.⁶ In enacting the Bartlett Act, the intent of Congress was to fill a gap in existing law by making it clear that foreign vessels are denied the privilege of fishing within the territorial waters of the United States and by providing effective sanctions for unlawful fishing by foreign vessels within territorial waters. H.R.Rep. (Merchant Marine and Fisheries Committee) No. 1356 (1964), U.S.Cong. & Admin.News, 1964, pp. 2183, 2183-84. The Bartlett Act did not define the width of the territorial sea, "thereby leaving the opportunity for the United States to follow the lead of Canada and other nations in establishing a limit beyond the present 3 miles for fishery purposes." Id. at p. 2187. The words "within any waters in which the United States has the same rights in respect to fisheries as it has in its territorial waters" were added in anticipation of the United States extending its fishery jurisdiction out to 12 miles. See H.R.Rep. (Merchant Marine and Fisheries Committee) No. 2086 (1966), U.S.Cong. & Admin.News, 1966, pp. 3282, 3289.

By the Contiguous Fisheries Zone Act, enacted in 1966, Congress established a fisheries zone contiguous to the territorial waters of the United States and provided with respect to such zone:

The United States will exercise the same exclusive rights in respect to fisheries in the zone as it has in its territorial sea, subject to the continuation of traditional fishing by foreign states within this zone as may be recognized by the United States. 16 U. S.C. § 1091.⁷

The contiguous fisheries zone was defined by Congress in the Contiguous Fisheries Zone Act as having "as its inner boundary the outer limits of the territorial sea and as its seaward boundary a line drawn so that each point on the line is nine nautical miles from the nearest point in the inner boundary." 16 U.S.C. § 1092.⁸ In so defining the contiguous zone, Congress recognized that the territorial sea of the United States extends three miles from the United States, which is where Thomas Jefferson set the outer limit in 1793 and where "it has remained unaltered to this day." H.R.Rep.No.2086, supra at pp. 3284-85. See Cunard Steamship Co. v. Mellon, 262 U.S. 100, 122-23, 43 S.Ct. 504, 167 L.Ed. 894 (1923).⁹ It was the expressed intent of Congress in the 1966 legislation to "unilaterally establish a fishery zone contiguous to the present 3-mile territorial sea of the United States by extending our exclusive fisheries rights to a distance of 12 miles from our shores." H.R.Rep.No.2086, supra at p. 3285.

III The Right of Hot Pursuit From the Contiguous Fisheries Zone

Defendant makes no contention that the contiguous fisheries zone created by the United States in the Contiguous Fisheries Zone Act violates customary international law. Defendant also recognizes that, within the three-mile territorial sea, the United States has the right to prohibit foreign fishing and that Article 23 of the Convention on the High Seas provides express authority for the United States to conduct hot pursuit from the territorial sea onto the high seas for the purpose of apprehending foreign ships which have violated domestic fisheries law within the territorial sea. And defendant does not contest that the Contiguous Fisheries Zone Act extended to a zone nine miles from the seaward limit of the territorial sea all the rights with respect to fisheries which the United States previously had in its territorial sea, and that, unless restricted by treaty, the United States has the right to conduct hot pursuit from a contiguous zone onto the high seas for violations of its domestic law. See The Newton Bay, 36 F.2d 729, 731-32 (2d Cir. 1929); Gillam v. United States, 27 F.2d 296, 299-300 (4th Cir.), cert. denied, 278 U.S. 635, 49 S.Ct. 32, 73 L.Ed. 552 (1928); The Resolution, 30 F.2d 534, 537 (E.D.La.1929); The Pescawha, 45 F.2d 221, 222 (D.Ore.1928); The Vinces, 20 F.2d 164, 172-73 (E.D.S.C. 1927). Defendant's sole contention is that the United States had no right to conduct hot pursuit from the contiguous zone and to effect seizure of the TAIYO MARU 28, because the vessel was seized on the high seas in violation of Article 23 of the 1958 Convention on the High Seas.

The Convention on the High Seas provides, in Article 2, that:

The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas

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