United States v. SEAFOAM II, A81-302

• Decision Date: 04 January 1982
• Docket Number: No. A81-302,A81-303.,A81-302
• Citation: 528 F. Supp. 1133
• Parties: UNITED STATES of America, Plaintiff, v. SEAFOAM II, with its fishing gear, furniture, appurtenances, stores, fish and cargo, and Barge Sea Pac I, with its fishing gear, furniture, appurtenances, stores, fish and cargo, Defendants. UNITED STATES of America, Plaintiff, v. RIO SAN LORENZO, with its fishing gear, furniture, appurtenances, stores, fish and cargo, and Barge Sea Pac II, with its fishing gear, furniture, appurtenances, stores, fish and cargo, Defendants.
• Court: U.S. District Court — District of Alaska

528 F. Supp. 1133

UNITED STATES of America, Plaintiff, v. SEAFOAM II, with its fishing gear, furniture, appurtenances, stores, fish and cargo, and Barge Sea Pac I, with its fishing gear, furniture, appurtenances, stores, fish and cargo, Defendants.

UNITED STATES of America, Plaintiff, v. RIO SAN LORENZO, with its fishing gear, furniture, appurtenances, stores, fish and cargo, and Barge Sea Pac II, with its fishing gear, furniture, appurtenances, stores, fish and cargo, Defendants.

Nos. A81-302, A81-303.

United States District Court, D. Alaska.

January 4, 1982.

Michael H. Woodell, Anchorage, Alaska, for defendants.

Michael Spaan, U. S. Atty. for Alaska, Anchorage, Alaska, for plaintiffs.

MEMORANDUM AND ORDER

VON DER HEYDT, Chief Judge.

THIS CAUSE comes before the court on cross-motions for summary judgment. Two cases have been consolidated in this proceeding. They both arise in admiralty and concern enforcement of the Fishery Conservation and Management Act of 1976 (FCMA). See generally 16 U.S.C. §§ 1801-82 (1976). Jurisdiction therefore exists based on 16 U.S.C. § 1861(d) and 28 U.S.C. § 1333 (1976).

I. FACTS

The case involves a suit for condemnation and forfeiture of defendant vessels for alleged violations of the Fishery Conservation and Management Act. The FCMA was a Congressional response to the perceived need to conserve and manage valuable fishery resources off the coast of the United States.

The Act significantly affected both domestic and foreign fishing in American waters. United States jurisdiction was increased to 200 miles by the establishment of a fishery conservation zone 197 miles in width measured from the seaward boundary of the territorial waters. 16 U.S.C. § 1811 (1976). Exclusive authority for fishery management within the zone, and even beyond in limited circumstances, was given to the federal government. Id. § 1812. Stated legislative purposes of the FCMA reflect Congress' desire to conserve and manage fishery resources as well as promote domestic utilization of same. Id. § 1801(b). Consistent with these goals, foreign fishing activities are subjected to comprehensive regulation. Foreign fishing is only allowed if an international fishery agreement (treaty) existed at the time of the Act or becomes effective between the United States and a foreign nation subsequent to passage of the Act. Id. § 1821. In such an event, vessels engaged in foreign fishing are still required to have a valid permit issued according to the procedure set forth in the FCMA. Id. §§ 1821(a)(3), 1824. Regulations promulgated under the Act also require, among other things, that foreign fishing vessels not engage in fishing within the boundaries of any state. 50 C.F.R. § 611.7(b)(1) (1980).

Enforcement of the Act on the water itself is delegated to the United States Coast Guard in conjunction with the National Marine Fisheries Service. Authorized personnel are given broad powers to randomly board and search those fishing vessels subject to the provisions of the Act, and seizure of a vessel along with its contents is sanctioned in proper instances. 16 U.S.C. § 1861 (1976). In addition to the civil and criminal penalties set forth, the Act provides that fishing vessels are subject to forfeiture to the United States if used in the commission of certain acts prohibited by the FCMA. Id. § 1860(a).

This case concerns the use of Canadian vessels within the fishery conservation zone and territorial sea off the coast of Alaska. The four vessels at issue are all registered in Canada and owned by Canadian corporations. The SEAFOAM II and RIO SAN LORENZO are tugs. SEAPAC I and SEAPAC II are their respective processing barges. The tugs were time chartered and the barges were bareboat chartered to Seapac Fisheries, Inc., a Washington corporation wholly owned by Canadian citizens. The record further reveals that the individuals in a Canadian corporation owning both barges are also stockholders in Seapac Fisheries, Inc.

All vessels passed through United States Customs Service at the Port of Ketchikan in April 1981. At that time, the vessels were declared to be of Canadian nationality. In addition to proceeding through customs, the production manager for Seapac Fisheries, Inc. allegedly qualified the corporation's operation in Alaska herring fisheries for 1981. Licenses for the four vessels were purchased from the Alaska Department of Fish and Game, and fish tickets for purchasing herring from fishermen were acquired from the Department of Commercial Fisheries. Appropriate bonds were filed, and business licenses from the Department of Revenue were also obtained. In complying with the foregoing registration procedures, individuals acting on behalf of defendant vessels believed they had fully acquired the right to catch and process herring in Alaskan waters.

The vessels subsequently commenced operations in the waters off southwest Alaska. At all relevant times the vessels were either within the three-mile territorial sea coterminous with the Alaska coast, or within the fishery conservation zone. On May 27, 1981, a special agent of the National Marine Fisheries Service observed the vessels receiving herring in the territorial waters within Stephens Pass. The agent boarded the vessels the next day for inspection as authorized by the FCMA. See 16 U.S.C. § 1861(b) (1976). After examining the records on board, he ascertained that defendant vessels were catching herring as well as buying herring from American fishing vessels. All fish were then processed on defendant barges.

The vessels and their contents were seized on May 30, 1981 pursuant to authority granted under the FCMA. See id. § 1861(b)(1)(C), (D) and (E). Among other things, § 1861 allows authorized officers to seize a vessel along with its fish and any other relevant evidence that reasonably appears to have been used in the violation of any provision of the FCMA. The alleged violations in this case include: catching and processing of fish within the territorial sea of Alaska by foreign vessels; catching and processing of fish by foreign fishing vessels inside the fishery conservation zone without FCMA permits; conducting an unauthorized directed fishery for herring and retention of same; failure of vessels to maintain a daily cumulative catch log; and failure of vessels to adequately report their activities to the Coast Guard. Based on these violations, the government sought forfeiture of the SEAFOAM II and SEAPAC I in one suit, and the RIO SAN LORENZO and SEAPAC II in another.

The pivotal issue in this case is a question of law regarding whether any defendant vessels may be characterized as "vessels of the United States" for purposes of the FCMA. If defendants are correct in their assertion that the vessels were meant to be included within the statutory definition provided in the Act, then they had no obligation to acquire FCMA permits or comply with numerous other restrictions on foreign fishing. They would therefore have a valid defense to the violations alleged. Conversely, if the government is correct in asserting defendant vessels were not "vessels of the United States", it follows that they were engaged in foreign fishing and processing, and subject to restrictions on such activity as set forth in the FCMA.

II. THE SUMMARY JUDGMENT MOTIONS

At this juncture, the court is asked to determine the parties' cross-motions for summary judgment. Both parties seek a ruling on whether defendant vessels are "vessels of the United States" for purposes of the FCMA. Plaintiff's motion is limited in that it only seeks summary judgment on Count I of the complaint. That count alleges defendants were in violation of implementing regulation 50 C.F.R. § 611.7(b)(1) (1980).

A. Documented Under the Laws of the United States

The FCMA defines a "vessel of the United States" to be "any vessel documented under the laws of the United States or registered under the laws of any State." 16 U.S.C. § 1802(27) (Supp. III 1979). Hence, there are two ways in which a vessel may acquire the desired status.

Under the first alternative, the word "documented" is not specifically defined by the statute. Legislative history also does not elaborate on the meaning of this term. Previously existing United States maritime laws, however, give the word a broad meaning. For example, the Ship Mortgage Act of 1920 defines documented as "registered or enrolled or licensed under the laws of the United States." 46 U.S.C. § 911(2) (1976). This is consistent with procedures set forth in the general shipping laws. See id. §§ 11, 17, 251(a) and 252. A federal regulation promulgated pursuant to that title also defines documented to mean "registered, enrolled and licensed, or licensed under the laws of the United States." 46 C.F.R. § 66.03-9 (1980). A Senate report accompanying an amendment to the FCMA recognizes that the Act and general shipping laws are interrelated. See S.Rep.No.96-72, 96th Cong., 1st Sess. 1, 4-6 (1979). The word documented should therefore be given the same broad meaning attributed to it in prior federal legislation.

Laws relating to documentation of vessels are currently administered and enforced by the United States Coast Guard. See 46 C.F.R. § 66.01-3 (1980). The record in this case reveals that the Coast Guard has not documented any defendant vessels under United States laws. Accordingly, the first alternative in the FCMA to determine a "vessel of the United States" does not afford defendant vessels the desired status.

B. Registered Under the Laws of Any State

The second possibility in 16 U.S.C. § 1802(27) provides "vessel of the United States" means any vessel "registered under the laws of any State." There is disagreement between the parties concerning whether defendants' compliance with Alaska registration requirements was the type of proceeding contemplated by Congress in this clause. Defendants maintain the latter clause of § 1802(27) was meant to include this possibility,...