a. The Spanish Government may appoint an observer to be present at sessions of any United States court-martial which hears the case. Whenever possible, such sessions will take place in Spanish territory.

b. The waiver by Spain of its right to exercise jurisdiction shall in no case imply any loss of the rights recognized for injured parties in Articles XXVII and XXX of the Agreement in Implementation.

U.S.-Mexico Fisheries Agreement

The U.S.-Mexico fisheries agreement signed on November 24, 1976; entered into force November 24, 1976, following unilateral extensions by both countries of their fisheries jurisdiction to 200 miles, provides for jurisdiction with respect to U.S. vessels in the zone off the Mexican coast, as follows:

Article VII

1. The Government of the United States of America shall take all appropriate measures, to the extent permissible under its national laws, to ensure that the United States fishing vessels that have valid permits to fish comply with this Agreement and applicable Mexican law.

2. In particular, the authorized Mexican officials shall have the right to stop, board and inspect any fishing vessel of the United States of America that is fishing in the Zone when there is reason to believe that it is not complying with the requirements that have been established for its fishing activity by the Government of Mexico as provided by this Agreement.

3. In cases of seizure and arrest of a vessel of the United States of America, notification shall be given promptly through diplomatic channels, informing the Government of the United States of America of the action taken and of any penalties subsequently imposed.

Article VIII

1. The Government of Mexico may impose penalties, as provided by Mexican law, on those fishing vessels of the United States of America that violate this Agreement.

2. Arrested vessels and their crews shall be promptly released upon the posting of bond or other security reasonably related to the penalty.

3. Penalties for violations of fisheries regulations applicable to fishing by vessels of the United States of America in the Zone shall not include imprisonment or any other form of corporal punishment.

4. In the annual consultation provided for in Article XIX, the Government of Mexico will take into account any substantial violations by fishing vessels of the United States of America that may have occurred the previous years.

For additional information concerning the agreement, see post, Ch. 7, § 4, p. 360. For information concerning the U.S.-Mexico interim arrangement on maritime boundaries signed Nov. 24, 1976, see post, Ch. 7, § 3, pp. 348-350.

Violation of U.S. Fisheries Laws

The U.S. Court of Appeals for the Fifth Circuit, in United States v. Ayo-Gonzalez, 536 F.2d 652 (1976), reviewed the conviction of the master of a Cuban fishing vessel for illegally fishing in the contiguous fishing zone of the United States and the judgment of forfeiture awarded the United States on a libel in rem charging the vessel with the same illegal act in violation of the Bartlett Act, 16 U.S.C. §§ 1081, 1082, 1091, and 1092. Appellant contended that the trial court had erred in (1) denying his suppression motion based on alleged violation of Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)); and (2) rejecting his contention that some form of mens rea must be proved to sustain a conviction under 16 U.S.C. 1081, which makes it unlawful for foreign vessels to fish in the contiguous zone.

The Appeals Court, on August 6, 1976, affirmed the judgment of the lower court. It held that in view of other evidence of the identity of the captain of the Cuban fishing vessel, any failure of authorities to inform the captain of his Miranda rights before asking him to identify himself as captain resulted, at most, in only harmless error. Secondly, it held that proof of culpability or fault was neither statutorily nor constitutionally necessary to sustain the captain's conviction or the vessel's forfeiture. The statute prohibiting foreign vessels from fishing in the zone, said the Court, was not based on any common law offense, but is a regulatory measure designed to protect both the commercial fishing industry and marine wildlife; it is a typical malum prohibitum offense. The constitutional requirement of due process was not violated, the Court held, because mens rea is not a required element of the proscribed crime.

Rear Admiral Ricardo A. Ratti, Chief Counsel of the Coast Guard, issued an opinion dated December 10, 1975, on Coast Guard authority for search, detention, seizure, and arrest of suspected violators of fisheries law when the basis of Coast Guard response is third party information.

Authority for seizure of foreign vessels for violation of Federal law is found in 14 U.S.C. 89 and 16 U.S.C. 1083(e). Under the former, a seizure may be made "when . . . it appears" that the vessel has violated a domestic law rendering it subject to seizure. Under the latter, a seizure may be made, with or without a warrant, when it "reasonably appears" that the vessel has been used to violate the fishery laws set forth in 16 U.S.C. 1081. These two statutory provisions should be construed as being in consonance, each requiring an evidentiary standard of "reasonable cause" for seizure. "Reasonable cause" may be established solely on

the basis of third party information regarding fishery law violations by foreign vessels. The decision regarding whether this information, in itself, is "reasonable cause" to believe a violation occurred depends on the nature of the information and the reliability of the third party. If the report emanates from a State fishery enforcement official, then the reliability criterion would be satisfied by virtue of the reliability inherent in his position as a law enforcement official. Decisions regarding the reliability of other third parties will have to be made on a case by case basis.

.. Because of the exigencies involved in at sea law enforcement it is impracticable to require a legal determination regarding the weight of the evidence of a suspected violation prior to seizure. The decision regarding seizure should not be based on the probability of successful prosecution; it should be based on the sound judgment of the prospective seizing official on scene, as supplemented by advice and instructions from the operational commander. As a rule of thumb, if it appears more probable than not that a section 1081 violation has occurred, then "reasonable cause" exists and seizure would be appropriate if a statement of "no objection" has been received.

Irrespective of whether a third party report is sufficient for a seizure, such information does provide an adequate legal basis for boarding foreign fishing vessels in U.S. jurisdictional waters. Coast Guard officers may board for inspection (and thereby detain) any foreign vessel in the territorial sea or the adjacent contiguous zone, under authority of 14 U.S.C. 89, if boarding is for law enforcement purposes, so long as the boarding is “reasonable” as that term is used in customary international law. In the case of foreign fishing vessels in U.S. jurisdictional waters (under express agreement or not) if there is any time during which the vessel could have engaged in prohibited fishing (i.e. if constant visual surveillance has not been maintained by the Coast Guard), then boarding for purposes of search/inspection is reasonable. There need not be any evidence of a fishery violation before boarding, so long as the potential for past undetected violations exists.

The general authority for the Coast Guard to make arrests of vessel personnel for violation of U.S. laws is found at 14 U.S.C. 89. Under the statute, the evidentiary standard for lawful arrests without a warrant should be viewed as being the same as the standard for seizure of vessels (reasonable cause). However, this general power to make arrests has been qualified by the language of the Bartlett Act with regard to arrests for fishery violations. Under 16 U.S.C. 1083(d), an enforcement official may arrest an individual for violation of the provisions of 16 U.S.C. 1081, without a warrant, only if the violation is committed in the presence or view of the arresting official. Since criminal laws should be construed in the narrow sense, the language of the Bartlett Act controls. Therefore, the master of a foreign vessel may be arrested for operation of his vessel in violation of 16 U.S.C. 1081 only if the arresting officer actually observes this unlawful activity. Such an arrest may never be based solely on third party information.

Likewise, an arrest would never be appropriate absent a showing of an adequate evidentiary basis for seizure of the vessel.

The Coast Guard may initiate "hot pursuit" of a foreign vessel for violation of Federal fishery laws based solely on the report of a third party so long as commencement of the pursuit takes place in the waters over which the U.S. has fisheries jurisdiction, comprised of the territorial sea and the contiguous fisheries zone. This is true regardless of whether the violation occurred in the territorial sea or the contiguous fisheries zone. The evidentiary standard necessary for initiation of hot pursuit is dictated by article 23 of the Convention of the High Seas of 1958 (13 UST 2312; TIAS 5200; "hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State.") The "good reason" standard of this international agreement should be more liberally construed than the "reasonable cause" test for seizure. Again, subjective judgment must be used in the application of this standard. However, in the context of response to a third party report, if the third party appears to have had an opportunity to observe the violation, and if there is no reason to doubt his reliability, then hot pursuit of a vessel attempting to elude boarding would be appropriate.

Dept. of Transportation, Coast Guard Law Bulletin, No. 413, Mar. 1976, pp. 17-19.

Boarding and Search on High Seas

U.S. Flag Vessels

United States v. One (1) 43 Foot Sailing Vessel, 405 F. Supp. 879 (1975), decided by the U.S. District Court for the Southern District of Florida on December 8, 1975, upheld the authority of the U.S. Coast Guard under international law to board and search U.S. flag vessels on the high seas.

The United States brought a proceeding seeking forfeiture of the sailing vessel, which Coast Guard officers had boarded for a safety check and found to contain marijuana. The District Court ordered forfeiture. It held that since the ship was a U.S. flag vessel, the Coast Guard officers, who observed it proceeding on the high seas at nighttime without lights, had authority to board the ship for a safety investigation and if contraband were discovered in the process they had the right to search completely and seize the contraband. In this case, the Court said, not only was marijuana observed in plain view, but the overwhelming aroma of it in the confined space of the cabin would, in any event, have justified further examination. The Court stated:

The United States has a duty under international law to "effectively exercise its jurisdiction and control in administrative,

technical and social matters over ships flying its flag." Article 5, Convention on the High Seas, 15 United States Treaties 2313 (hereafter C.H.S.). On the high seas, only the vessels of the United States Government may exercise jurisdiction over United States flag vessels. Article 6, C.H.S. Since no nation may exercise sovereignty over the waters of the high seas, art. 1, Č.H.S., the maintenance of public order on the world's oceans depends upon effective control in accordance with their treaty obligations by the nations of the world over vessels flying their flag. Throughout history, governments have had a direct and special interest in the conduct and operation of their citizens' vessels and the immunity of such vessels on the high seas from interference by foreign governments. One method of ensuring that foreign governments do not interfere with the exercise of traditional freedoms of the seas by United States vessels requires the United States to exercise effective control over them as required by international law. Article 5, C.H.S.

In order that the United States may effectively exercise its domestic authority in the special maritime jurisdiction of the United States and carry out its obligations under international law, Title 14, United States Code, § 89(a) authorizes the Coast Guard:

[to] make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas... for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board, . . . examine the ship's documents and papers and examine, inspect, and search the vessel. . . . When . it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested. . . . 14 U.S.C. 89(a) (emphasis added).

When acting under this statute, Coast Guard boarding officers may enforce any law of the United States as an agent of the department or independent establishment charged with the enforcement of that law. Such powers are in addition to and not a limitation on their powers to enforce laws as Coast Guard Officers. 14 U.S.C.A. § 89(b)(c) (Supp. 1974). Therefore, express statutory authority exists for the action of the Coast Guard in stopping and inspecting the defendant vessel.

Foreign Flag Vessels

On October 19, 1976, the U.S. Coast Guard boarded and seized in international waters a Panamanian flag vessel reportedly engaged in narcotic smuggling. The seizure was made with the consent of the Panamanian Government. The predominantly Colombian crew was subsequently returned to Panama for prosecution by the Panamanian authorities for violation of Panamanian law prohibiting trafficking in contraband narcotics aboard a vessel of Panamanian