Veldhoen v. US Coast Guard, Civ. A. No. 93-3730.
| Citation | 838 F. Supp. 280 |
| Decision Date | 16 November 1993 |
| Docket Number | Civ. A. No. 93-3730. |
| Parties | Paul VELDHOEN and Arnoldus Broekhoven v. The UNITED STATES COAST GUARD, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Robert Hugh Murphy, Peter Brooks Sloss, Lawrence R. Plunkett, Jr., Murphy, Williams, et al., New Orleans, LA, for plaintiffs.
Keith B. Letourneau, U.S. Dept. of Justice, Washington, DC, Nancy Ann Nungesser, U.S. Attys. Office, New Orleans, LA, for defendants.
ORDER AND REASONS
Before the Court is the motion of petitioners Arnoldus Broekhoven and Paul Veldhoen for declaratory judgment, a temporary restraining order or a preliminary injunction prohibiting the U.S. Coast Guard from investigating a collision on the high seas between two foreign vessels. Petitioners further request that the Court quash the subpoenas issued to them by the Coast Guard pursuant to its investigation. For the reasons that follow, the petition is DENIED.
On November 6, 1993 at 8:30 p.m. the M/S NOORDAM, a Netherlands Antilles flagged cruise ship collided with the M/S MOUNT YMITOS, a freighter sailing under the Maltese flag. At the time of the collision with the M/S NOORDAM, of the 1207 passengers aboard, 1124 were U.S. citizens. It is undisputed that the accident occurred outside of U.S. navigable waters, approximately one mile beyond the three mile limit which defines the boundary of U.S. navigable waters. The collision apparently did considerable damage to both vessels, but there were no reported injuries and no fatalities.
After the accident, the United States Coast Guard convened a marine board of inquiry, naming the Chief Officer of the M/S NOORDAM, Arnoldus Broekhoven, and his Third Officer, Paul Veldhoen, as parties in interest. The incident occurred on their watch. The marine board ordered that Broekhoven and Veldhoen appear at a hearing to testify as to the cause of the accident. Broekhoven and Veldhoen, who were both on the bridge of the M/S NOORDAM at the time of the accident, want the investigation enjoined; they resist by asserting that the Coast Guard has no authority to conduct an investigation and that failure to grant an injunction could lead to irreparable harm to their professional futures because the Coast Guard's investigation could result in adverse action by Dutch authorities, including the possible revocation of their licenses.
The question their motion targets is whether, by enacting 46 U.S.C. § 6101(e)(1), Congress intended to give the Coast Guard the power to conduct an investigation of this kind of incident involving two foreign flag vessels, one of which was a cruise ship carrying U.S. passengers? Based on the statutory expression of Congress, the Court holds that 46 U.S.C. § 6101 was enacted to enable the U.S. Coast Guard to investigate precisely this kind of incident.
46 U.S.C. § 6101(a) provides:
46 U.S.C. § 6101(e)(1) was added to the statute in 1991 to provide for U.S. Coast Guard investigations of certain accidents involving foreign cruise ships. 46 U.S.C. § 6101(e)(1) provides:1
According to subsection (e)(1), when a marine casualty occurs that involves U.S. passengers, within the defined geographic region2, the Secretary has the discretionary authority to investigate the incident through a marine board of investigation convened under chapter 63 of Title 46 or under a multinational mode of inquiry.
Petitioners argue that the central question3 in considering the Coast Guard's jurisdiction under § 6101(e)(1) is, when does a marine casualty "involve" a United States citizen? The principal thrust of their position focuses on their interpretation of the statute. They argue that § 6101(e)(1) must be read in conjunction with subsection (a) and that a marine casualty "involves" a United States citizen under subsection (e)(1) only when a United States citizen is killed, seriously injured, or sustains a material loss of property under subsection (a). Their interpretation is unpersuasive.
In interpreting § 6101(e)(1) the Court is mindful of the long-established canon of statutory construction that U.S. law is to be interpreted in a way not to violate international law absent a clear indication of Congressional intent to do so. United States v. Marino-Garcia, 679 F.2d 1373, 1380 (1982), cert. denied, Pauth-Arzuza v. United States, 459 U.S. 1114, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983), quoting Murray v. The Schooner Charming Betsy, 6 U.S. (S Cranch) 64, 118, 2 L.Ed. 208 (1804).
Under customary international law, "to insure the principle of freedom of the seas, international law generally prohibits any country from asserting jurisdiction over foreign vessels on the high seas ... Indeed such vessels are generally considered under the exclusive jurisdiction of the country whose flag they fly." United States v. Marino-Garcia, 679 F.2d at 1381 (citations omitted.)
Thus, § 6101(e)(1) stands out as an exception to that generally acknowledged principle of international law, and must bear a sufficiently clear indication of Congressional intent to stray from that principle. See E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 256-57, 111 S.Ct. 1227, 1235, 113 L.Ed.2d 274 (1991) (). This addition to the statute was of concern to both Congress and the President when passage was being considered.
It was the purpose of the new provision to confirm legislatively that Coast Guard investigations are meant to "produce findings and recommendations to improve safety on passenger vessels." 46 U.S.C. § 6101(e)(2)(B). This conclusion is supplemented by some of the legislative debate, which expressed frustration that the Coast Guard lacked the authority at the time to compel the participation of foreign vessels in investigations into passenger ship collisions. Congress was concerned that disasters on the high seas could threaten the safety of U.S. citizens on foreign ships.
Congressman Jones, of North Carolina, the sponsor of the amendment that became subsection (e)(1) commented that his amendment was designed to give the Coast Guard the discretionary authority to investigate accidents on the high seas. 110 Cong.Rec. H5614, H5615 (daily ed. July 18, 1991). He noted that the Coast Guard was conducting an investigation of an engine room fire aboard a Bahamian cruise ship (carrying U.S. citizens) only because the Bahamian government and the cruise company were complying voluntarily with the investigation. Id.
Congressman Tauzin noted that close to eighty percent of the cruise-vessel passengers worldwide are U.S. citizens and thought it important to make every effort to verify the safety and reliability of passenger vessels carrying United States passengers. Id.
Congressman Fields made special reference to the accident litigated in National Transportation Safety Board v. Carnival Cruise Lines, Inc., 723 F.Supp. 1488 (S.D.Fla.1989) in which the owners of the M/V Celebration (a cruise ship carrying U.S. passengers and involved in a serious collision in international waters) refused to cooperate with the Coast Guard's investigation of the accident. That celebrated case drove Congress to act. Carnival Cruise Lines concerned a collision between the Carnival Cruise ship and a Cuban freighter. The Cuban freighter was cut in half. No U.S. citizen was hurt, and none was killed; and the record does not disclose that any property loss was sustained by a U.S. citizen (a threshold test encouraged by petitioners and rejected by this Court). But three crew members of the Cuban vessel were killed. The vessel itself was destroyed. Congressman Fields was worried by the refusal of the Carnival Cruise ship owners to cooperate. He observed that "as Members of Congress we have a fundamental obligation to safeguard the safety of our constituents." Id.
All these observations suggest that the Congress was of the belief that the Coast Guard should have the discretion to investigate these incidents when U.S. passengers have been put at risk. Thus, the government contends, and the Court agrees, that Congress has stated that it meant for the Coast Guard to investigate accidents causing material damage to a cruise ship carrying U.S. passengers for hire within a defined geographic zone.4 46 U.S.C. § 6101(a)(4). The nature and extent of damage to the vessels has not been disputed here.5
It is also of more than passing importance to recall that President Bush, when...
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Veldhoen v. U.S. Coast Guard
...that the Coast Guard lacked jurisdiction to investigate a high-seas collision where no Americans suffered injury, damage, or loss 838 F.Supp. 280. 1 They also argued that their careers could suffer irreparable harm if the hearing was allowed to The district court denied the petition, becaus......