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registry. Kempton B. Jenkins, Acting Assistant Secretary of State for Congressional Relations, described the incident in a letter of December 6, 1976, to Senator Edmund S. Muskie, as follows:
The vessel in question, the Don Emilio of Panamanian registry, was reported to be carrying a cargo of illicit drugs which were allegedly taken on board during the vessel's call to the port of Cartagena, Colombia. Following its departure from Colombia, the vessel set a northeastward course and remained in international waters. According to information obtained from reliable informants, the contraband cargo was destined for the United States and Canada where it was to be picked up by intercept craft. The United States Coast Guard picked up and maintained surveillance of the vessel; however, the captain of the vessel apparently became aware of the surveillance and decided not to enter U.S. waters. The Coast Guard requested authority to board the vessel in international waters. The Department of State contacted the Government of Panama to obtain its consent to board the vessel, citing the obligation to cooperate in the prevention of illicit narcotic trafficking imposed under the Single Convention on Narcotic Drugs 1961, as amended [TIAS 6298; 18 UST 1407] to which both countries are parties.
The Government of Panama consented to our request and authorized the Coast Guard to act as its agent to board the vessel and seize the illicit drugs. The vessel was boarded pursuant to this authority and a contraband cargo discovered. Prior to the boarding, the vessel appeared to be in some distress and upon boarding it, it was discovered that contaminated fuel had disabled the vessel. The Coast Guard towed the vessel to the Port of Miami, Florida, where the vessel was held for search by agents of the Drug Enforcement Administration. Approximately 35 tons of marijuana was found, removed from the vessel by the Drug Enforcement Administration and destroyed. A thorough investigation failed to produce sufficient evidence of violation of U.S. narcotic laws, particularly the conspiracy provisions, to warrant United States prosecution.
The Governments of Colombia and Panama were advised of the facts of the case and requested to indicate their respective interests in prosecuting those involved in this case. The crew of the vessel was predominantly Colombian and the contraband was alleged to have been loaded in Colombia. The Colombian Government expressed no desire to prosecute members of the crew for a violation of Colombian law; however, the Panamanian Government requested extradition of the crew to stand trial in Panama for the violation of Panamanian law. The crew has been returned to Panama where the Department understands criminal proceedings have been instituted.
The Department of State informed the Embassy of Panama in Washington, by note dated December 13, 1976, that, pursuant to
article IX of the U.S.-Panama Treaty of Extradition of May 25, 1904 (TS 445; 34 Stat. 2851; 10 Bevans 673), the United States was offering and agreeing to release the vessel Don Emilio to the Government of Panama, with the understanding that the vessel would be removed from its berth at the U.S. Coast Guard Station, Miami, Florida, no later than the following day.
Dept. of State File Nos. P76 0185-1943 and P76 0191-1209.
Vessels Assimilated to Stateless Status
Rear Admiral G.H. Patrick Bursley, Chief Counsel, U.S. Coast Guard, issued a legal opinion dated April 5, 1976, in which he defended the Coast Guard's enforcement action against the Yellowfin (Pn.), which had displayed two different flags while operating on the high seas and while under surveillance for engaging in the international transportation of narcotic drugs. According to Admiral Bursley's account, the Coast Guard, after sighting the suspected vessel in waters off the coast of Cuba without a flag and subsequently with a U.S. flag, had boarded the vessel. At that point the U.S. flag was replaced by a Panamanian flag and the crew alleged the vessel to be of Panamanian registry and themselves to be Colombians. When diplomatic communication was initiated, Panama and Colombia made conflicting claims to registry of the vessel, and the Yellowfin was escorted to Miami pending true determination of nationality. In his opinion, Admiral Bursley noted initially that article 6 of the 1958 Convention on the High Seas (TIAS 5200; 13 UST 2312) provides that vessels displaying two or more flags may be "assimilated" to the status of a stateless vessel. He continued:
Assimilation of a vessel to a stateless character may terminate the legal protection offered by the state of true nationality, but it does not work to change its status to that of a U.S. vessel, nor does it end jurisdiction over the vessel by the true state of nationality. If a vessel has displayed two or more flags while operating on the high seas, the Coast Guard may detain and board the vessel for the purpose of determining its true state of registry. After determination of true nationality, the legal fiction of "statelessness" terminates, and the vessel becomes a foreign vessel for purposes of enforcement of U.S. law. Action taken subsequent to this determination, while the vessel remains on the high seas, must normally be based on either a specific request by the state of true nationality to assist in temporary detention of the vessel (e.g., CG enforcement activity in response to a request by the Secretary of State in accordance with 14 U.S.C. § 141), or upon a finding that the vessel has violated a law of the United States which provides for extraterritorial jurisdiction. In all other respects, this type of vessel must be treated as any other foreign flag vessel on the high seas. Use of force is permissible only in the enforcement of domestic law.
If a particular Federal statute provides for extraterritorial application, other than under the "Special Maritime and Territorial Jurisdiction," then it may apply to conduct of foreign vessels (or persons on board foreign vessels) outside U.S. territorial waters. But, carriage of narcotic drugs by foreign vessels on the high seas is not a crime under U.S. law.
If a vessel on the high seas has, by its conduct, been assimilated to a stateless character, then boarding and attendant detention is proper in order to determine true nationality. In fact, article 22 of the CHS [Convention on the High Seas] specificially makes allowances for boarding under these conditions. Further, force may be used if necessary to accomplish this boarding, as it is conducted for purposes of enforcing U.S. law (14 U.S.C. §89). After determination of true nationality, in a case where there is no indication that there has been a violation of a U.S. law which provides for extraterritorial jurisdiction over foreign vessels, then further Coast Guard intervention will normally be inappropriate. Nevertheless, subsequent detention of the vessel, after this determination has been made, would not violate principles of international law, as the vessel remains "stateless" by international convention, regardless of whether it is recognized as being a foreign vessel for purposes of application of U.S. law. And further detention would be reasonable, if made at the specific request of the true flag state. If the vessel's activities violate the law of the true state of nationality, but that state lacks the means of enforcing its law, then the United States may, upon diplomatic request, assist the foreign nation by further detention of the vessel. Further, detention is reasonable in the interim period, after boarding, while awaiting the instructions of the foreign state. Use of force is appropriate to accomplish this temporary detention. Decisions of this nature will be made only when the state of true nationality makes a formal request to DOS for assistance.
Pursuit of the Yellowfin was reasonable after its display of a U.S. flag, as the United States has jursidiction over vessels of its registry, wherever they may be. Boarding of the vessel by the Coast Guard was permissible after it displayed a second flag, since at this point it was assimilated to the status of a stateless vessel under the 1958 High Seas Convention. The subsequent detention on the high seas, pending determination of true nationality, was reasonable under the circumstances even though there was no evidence of a violation of U.S. law, because the vessel remained stateless under international law and, therefore, was subject to the jurisdiction of the United States as an intervening state. Detention of a stateless vessel pending determination of its true state of nationality is consistent with the meaning of the 1958 High Seas Convention. Further, forced movement of the vessel into a U.S. port (and into U.S. territorial jurisdiction) was appropriate in light of the delayed contact with the true flag state and the prevailing sea conditions. It was reasonable to escort the Yellowfin to protected waters until resolution of this question could be made. This was not a seizure (which is permissible only for violation of a U.S. law
which specifically provides for this type of enforcement action), as seizures of vessels are directed toward subsequent Federal criminal prosecution. Rather, this was a temporary detention of the vessel, which was a proper exercise of U.S. authority, permitted under international principles of law.
Dept. of Transportation, Coast Guard Law Bulletin, No. 415, Sept. 1976, pp. 7-10.
86 Judicial Assistance
In a circular diplomatic note, dated February 3, 1976, to Chiefs of Mission in Washington, the Department of State set forth, for the guidance of foreign tribunals seeking international judicial assistance, the types of judicial assistance which are provided by the United States, subject to the condition of reciprocity and the limitations imposed by U.S. law. The text of the note follows:
The Secretary of State presents his compliments to Their Excellencies, Messieurs and Mesdames the Chiefs of Mission, and has the honor to inform them of the types of judicial assistance afforded to foreign tribunals and to litigants before such tribunals by the Government of the United States.
Service of Judicial Documents
The first category of assistance concerns the formal delivery of legal documents in the United States. Upon the request of the Department of State, the Department of Justice, through the United States Marshals Service, will attempt to deliver legal documents to persons or entities within the jurisdiction of the United States and, if successful, will return to the requesting authority a certificate stating the time and place of service. The Department of State will transmit requests for service of process received through diplomatic channels to the Department of Justice for execution provided:
-the request originates with a foreign tribunal or other judicial authority;
-the document is issued in connection with a judicial proceeding pending before such tribunal or judicial authority;
-the request and the document to be served are translated into English;
-two sets of the document and its translation are supplied (one set will be served and the other will be returned by the Marshals Service together with the proof of service);
-each request is accompanied by a check or money order in the amount of $15.00, payable to the Treasurer of the United States; -a full name and street address is given for the individual or entity to be served (personal service cannot be made if only a post office box number is given); and
-every document issued for the purpose of notifying an individual of a hearing at which the individual's rights or obligations may be affected is received in the Department of State at least forty-five days prior to the date set for the hearing.
Requests for service transmitted through diplomatic channels need not be legalized or authenticated if the transmittal note confirms that the request emanates from a duly constituted tribunal or other judicial authority of the requesting country.
Documents conforming to the foregoing requirements will be forwarded promptly to the Department of Justice for service by the Marshals Service in the manner provided for the service of similar documents in domestic actions (see pertinent excerpts from Rule 4 of the Federal Rules of Civil Procedures, enclosure 1), unless another manner is specified in the request. The Marshals Service will make diligent efforts to serve the document, but if service cannot be made after three attempts, it will be returned together with a written statement showing the dates, times and the place where service was attempted. If the designated recipient has moved, the Marshals Service will try to ascertain the forwarding address and cause the document to be served at that address without additional charge to the requesting authority.
It should be noted that formal service of foreign judicial documents as set forth above does not, of itself, require the recognition or enforcement in the United States of any ensuing judgment which may be rendered by a foreign tribunal.
As regards delivery of foreign judicial documents in the United States generally, the United States has no objection to the informal delivery of such documents by members of diplomatic or consular missions, through the mails, or by private persons, provided no compulsion is used.
The Secretary wishes to direct the attention of the Chiefs of Mission to the existence of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on November 15, 1965, which offers a simplified and speedy method of serving foreign documents in the United States. The Convention is presently in force in the United States and provides for accession by other states.
Obtaining evidence for use in a proceeding in a foreign tribunal is the second category of judicial assistance afforded to foreign tribunals and to litigants before such tribunals by the Government of the United States. (As used herein, evidence means the giving of testimony or statements, or the production of documents or other things.) The Department of State will forward requests for evidence to the Department of Justice for execution provided the request:
-emanates from a foreign tribunal or other judicial authority; -is translated into English, and two copies of the request and of the translation are furnished;
-specifies the names and addresses of the parties to the proceedings and the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;
-gives the full name, street address and relationship to the evidence of the person or entity from whom the evidence is sought; -specifies the evidence to be obtained with particularity (e.g., by listing the questions to be put to the witness or providing a