670
Maritime Jurisdiction
|
Section 7 of Title 18 provides that the "special territorial and
maritime jurisdiction of the United States" includes:
(1) The high seas, any other waters within the admiralty
and
maritime jurisdiction of the United States and out of the jurisdiction of
any
particular State, and any vessel belonging in whole or in part to the United
States or any citizen thereof, or to any corporation created by or under the
laws
of the United States or of any State, Territory, District, or possession
thereof,
when such vessel is within the admiralty and maritime jurisdiction of the
United
States and out of the jurisdiction of any particular State.
Until recently the term "high seas" was always understood as
intending
the open and unenclosed waters of the sea beginning at low-water mark.
In re Ross, 140 U.S. 453, 471 (1891);
Murray v. Hildreth, 61 F.2d 483 (5th Cir. 1932); see also
United
States v. Rodgers, 150 U.S. 249 (1893) (Great Lakes). Although
it has
become common of late to use the term to describe waters beyond a marginal
belt
or "territorial sea" over which a nation claims special rights, see,
e.g.,
United States v. Louisiana, (Louisiana Boundary Case), 394 U.S. 11,
22-23
(1969); United States v. Postal, 589 F.2d 862, 868 (5th Cir.),
cert.
denied, 444 U.S. 832 (1979), the classic definition, contemporaneous
with
this statute's development, is the correct one. The territorial sea was
extended
from 3 to 12 nautical miles by Presidential Proclamation 5928 of December
27,
1988.
The words of limitation "and out of the jurisdiction of any
particular
State," that appear in section 7(1) do not qualify the "high seas"
jurisdiction,
but only the "other waters within the admiralty and maritime jurisdiction of
the
United States." See Hoopengarner v. United States, 270 F.2d
465,
470 (6th Cir. 1959); Murray v. Hildreth, 61 F.2d 483; see also
United States v. Rodgers, 150 U.S. at 265-66. Accordingly, the fact
that
a state fixes its boundary beyond the low-water mark and claims jurisdiction
over
the marginal sea, while relevant to venue, is immaterial to Federal
jurisdiction.
See Murray v. Hildreth, 61 F.2d 483. Although
states' rights to exercise authority over the marginal sea developed more
slowly
than the law governing the jurisdiction of the Federal government over the
marginal sea, see United States v. California, 332 U.S. 19,
32-35
(1946), it cannot be doubted that a state may exercise jurisdiction over the
marginal portion of the ocean, provided there is no conflict with Federal
law or
the rights of foreign nations. See Skiriotes v. Florida, 313
U.S.
69 (1941). Indeed, a state may, subject to the same limitations, enforce
its
laws upon its citizens and registered vessels on the high seas beyond its
territorial waters. Id. at 77. It is usually the policy of the
Department to defer to a state when it is prepared to undertake prosecution
of
conduct violative of both state and Federal law.
Despite the apparent universal application of the term "high seas,"
it
was early held that, as a general rule, Federal criminal jurisdiction does
not
attach to offenses committed by and against foreigners on foreign vessels.
See United States v. Holmes, 18 U.S. (5 Wheat.) 412 (1890);
United States v. Palmer, 16 U.S. (3 Wheat.) 281, 288 (1818).
See,
however, 18 U.S.C. § 7(8). The Convention on the High Seas to which
the
United States is a party, purports to give the flag state exclusive
jurisdiction
over its vessels on the high seas. However, the Convention has been held
not to
be self-executing with the result that it does not confer on defendants the
right
to complain of arrests, searches and seizures made without consent of the
flag
state or any subsequent trial. United States v. Postal, 589 F.2d
862, 873
(5th Cir.), cert. denied, 444 U.S. 832 (1979).
The limitation on Federal jurisdiction when the offense takes place
on
a river or harbor within the admiralty or maritime jurisdiction of the
United
States but not "out of the jurisdiction of a particular State," applies to
offenses by naval personnel on naval vessels. See United States
v.
Bevans, 16 U.S. (3 Wheat.) 336 (1818).
"State" in the context of 18 U.S.C. § 7(1) means "State of the
United States." Thus, there is Federal jurisdiction under this provision
for
offenses committed on American vessels in the territorial waters, harbors
and
inland waterways of foreign nations. See United States v.
Flores,
289 U.S. 137 (1933). The port nation may also have jurisdiction if the
offense
disturbs its peace. Id. at 157-59.
Vessels have the nationality of the country where they are
registered
and whose flag they have a right to fly. See United States v.
Arra, 630 F.2d 836 (1st Cir. 1980). See United States v.
Ross,
439 F.2d 1355 (9th Cir.1971), cert. denied, 404 U.S. 1015 (1972), for
methods of proving nationality. Note that under 18 U.S.C. § 7(1)
Federal
jurisdiction attaches if the vessel is even partially owned by a citizen of
the
United States. See United States v. Keller, 451 F. Supp. 631,
636-37 (D.P.R. 1978), aff'd on other grounds, sub nom
United
States v. Arra, 630 F.2d 836 (1st Cir.1980).
Venue for maritime offenses committed "out of the jurisdiction of a
particular State" is governed by 18 U.S.C. § 3238. See
United
States v. Ross, 439 F.2d at 1358-59. Where the offense occurred within
the
boundaries of a state, venue lies there. See United
States v. Peterson, 64 F. 145 (E.D.Wis. 1894).
Federal prosecution may not be undertaken following a state
prosecution
for the same conduct without authorization of the Assistant Attorney General
of
the Criminal Division as provided by USAM
9-2.031
(Petite Policy). Prosecution should not be undertaken following a foreign
prosecution unless substantial Federal interests were left unvindicated.
[cited in USAM 9-20.100] | |