And now:[EMAIL PROTECTED] writes:
From: "Michael Two Horses" <[EMAIL PROTECTED]>
Hello all,
I wanted to let you know that the Sea Shepherd and SEDNA folks are going to
be arraigned in Federal Court tomorrow in Tacoma (if you didn't already
know...).
Federal arraignment 1:30pm Friday October 1, 1999
Josh Harper
Jake Conroy
Alison Lance
Lisa DiStephano
Scott Hopper
Violation of 46 USC � 2302:
46 USCS � 2302 *** THIS SECTION IS CURRENT THROUGH 106-55, APPROVED 8/17/99
***
TITLE 46. SHIPPING
SUBTITLE II. VESSELS AND SEAMEN
PART A. GENERAL PROVISIONS
CHAPTER 23. OPERATION OF VESSELS GENERALLY
46 USCS � 2302 (1999)
� 2302. Penalties for negligent operations and interfering with safe
operation
(a) A person operating a vessel in a negligent manner or interfering with
the safe operation of a vessel, so as to endanger the life, limb, or
property of a person is liable to the United States Government for a civil
penalty of not more than $ 1,000.
(b) A person operating a vessel in a grossly negligent manner that endangers
the life, limb, or property of a person commits a class A misdemeanor.
(c) An individual who is under the influence of alcohol, or a dangerous drug
in violation of a law of the United States when operating a vessel, as
determined under standards prescribed by the Secretary by regulation--
(1) is liable to the United States Government for a civil penalty of not
more than $ 5,000; or
(2) commits a class A misdemeanor.
(d) For a penalty imposed under this section, the vessel also is liable in
rem unless the vessel is--
(1) owned by a State or a political subdivision of a State;
(2) operated principally for governmental purposes; and
(3) identified clearly as a vessel of that State or subdivision.
(e) (1) A vessel may not transport Government-impelled cargoes if--
(A) the vessel has been detained and determined to be substandard by
the Secretary for violation of an international safety convention to which
the United States is a party, and the Secretary has published notice of that
detention and determination in an electronic form, including the name of the
owner of the vessel; or
(B) the operator of the vessel has on more than one occasion had a
vessel detained and determined to be substandard by the Secretary for
violation of an international safety convention to which the United States
is a party, and the Secretary has published notice of that detention and
determination in an electronic form, including the name of the owner of the
vessel.
(2) The prohibition in paragraph (1) expires for a vessel on the earlier
of--
(A) 1 year after the date of the publication in electronic form on
which the prohibition is based; or
(B) any date on which the owner or operator of the vessel prevails in
an appeal of the violation of the relevant international convention on which
the detention is based.
(3) As used in this subsection, the term "Government-impelled cargo"
means cargo for which a Federal agency contracts directly for shipping by
water or for which (or the freight of which) a Federal agency provides
financing, including financing by grant, loan, or loan guarantee, resulting
in shipment of the cargo by water.
HISTORY:
(Aug. 26, 1983, P.L. 98-89, � 1, 97 Stat. 508; Oct. 30, 1984, P.L.
98-557, � 7(a), 98 Stat. 2862.)
(As amended Aug. 18, 1990, P.L. 101-380, Title IV, Subtitle A, �
4105(b)(2), Subtitle C, � 4302(a), 104 Stat. 513, 537; Nov. 4, 1992, P.L.
102-587, Title V, Subtitle A, � 5102, 106 Stat. 5071; Nov. 13, 1998, P.L.
105-383, Title III, �� 302(a), 304(c), Title IV, � 408(a), 112 Stat. 3417,
3419, 3430.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Prior law and revision:
--------------------------------------------------------------------
Revised Section Source (USCS)
--------------------------------------------------------------------
2302 ......................................... 46:1461(d)
46:1483
46:1484(b)
--------------------------------------------------------------------
Section 2302 states that the negligent operation of a vessel is
prohibited. These acts are subject to civil and criminal penalties and the
involved vessel is subject to an in rem action. The negligent operation
provisions have their genesis in the Act of April 25, 1940, 54 Stat. 167,
when Congress prescribed that no person shall operate any motorboat or any
vessel in a reckless or negligent manner. This provision was directed at all
vessels and not those solely engaged in recreational boating. When the
Federal Boat Safety Act of 1971, P.L. 92-75, 85 Stat. 217 (46 U.S.C. 1461)
was enacted it adopted the reckless or negligent operation provisions of the
1940 Act. It adopted for the first time a provision for assessing civil
penalties in addition to criminal penalties. It dropped the word "reckless"
because of redundancy. It also combined the two classes of vessels; "any
motorboat or any vessel" into one class by using the word "vessel" and
defined vessel as including every description of watercraft.
Amendments:
1984. Act Oct. 30, 1984, redesignated former subsec. (c) as subsec. (d);
and added a new subsec. (c).
1990. Act Aug. 18, 1990 (applicable as provided by � 1020 of such Act,
which appears as 33 USCS � 2701 note) in subsec. (b), substituted "commits a
class A misdemeanor." for "shall be fined not more than $ 5,000, imprisoned
for not more than one year, or both."; in subsec. (c), in the introductory
matter, substituted "under the influence of alcohol, or a dangerous drug in
violation of a law of the United States" for "intoxicated", and deleted ",
shall be" following "regulation", in para. (1), inserted "is" preceding
"liable", and substituted para. (2) for one which read: "fined not more than
$ 5,000, imprisoned for not more than one year, or both.".
1992. Act Nov. 4, 1992, in subsec. (c)(1), substituted "$ 1,000 for a
first violation and not more than $ 5,000 for a subsequent violation;" for
"$ 1,000;".
1998. Act Nov. 13, 1998, substituted the section heading for one which
read: "� 2302. Penalties for negligent operations"; in subsec. (a),
substituted "or interfering with the safe operation of a vessel, so as to
endanger" for "that endangers"; and, in subsec. (c)(1), substituted "$
5,000; or" for "$ 1,000 for a first violation and not more than $ 5,000 for
a subsequent violation; or".
Such Act further (effective 1/1/99, as provided by � 408(b) of such Act,
which appears as a note to this section), added subsec. (e).
Other provisions:
Effective date of amendment made by � 408(a) of Act Nov. 13, 1998. Act
Nov. 13, 1998, P.L. 105-383, Title IV, � 408(b), 112 Stat. 3431, provides:
"The amendment made by subsection (a) [adding subsec. (e) of this section]
takes effect January 1, 1999.".
NOTES:
CODE OF FEDERAL REGULATIONS
Add:
33 CFR Part 95
CROSS REFERENCES
Penalty procedures, 46 USCS � 2107.
Refund of penalties, 46 USCS � 2108.
Injunctions against negligent operation, 46 USCS � 2305.
RESEARCH GUIDE
Federal Procedure:
Navigable Waters, Fed Proc, L Ed, � 57:223.
Am Jur:
12 Am Jur 2d, Boats and Boating � 41.
70 Am Jur 2d, Shipping � 615.
Am Jur Trials:
Litigation involving accidents, 7 Am Jur Trials 1.
Preparation of case concerning collision, 17 Am Jur Trials 501.
Role of ship inspection in collision cases, 17 Am Jur Trials 501.
Effect of licensing and certification in ship collision cases, 17 Am Jur
Trials 501.
Am Jur Proof of Facts:
Negligent operation of ski boat, 36 Am Jur Proof of Facts 2d pp 525-604.
Motorboat accidents, 14 Am Jur Proof of Facts pp 399-530.
Marine radar accidents, 17 Am Jur Proof of Facts pp 283-505.
Emergency stopping and turning of ships, 20 Am Jur Proof of Facts pp
1-222.
Annotations:
Liability of owner for vessel negligently sunk in navigable waters. 19 L
Ed 2d 407.
Half-distance rule relating to speed of vessels in fog. 34 L Ed 2d 365.
Last clear chance doctrine in admiralty. 3 ALR Fed 203.
Right to limitation of liability as to accident caused by defective
navigation equipment. 20 ALR Fed 830.
Criminal liability for injury or death caused by operation of pleasure
boat. 8 ALR4th 886.
Res ipsa loquitur with respect to personal injuries or death on or about
ship. 1 ALR3d 642.
Right to recover for death of seaman under Death on the High Seas Act as
affected by Jones Act. 22 ALR3d 852.
Liability of owner of powerboat for injury or death allegedly caused by
one permitted to operate boat by owner. 71 ALR3d 1018.
Liability of owner or operator of powered pleasure boat for injuries to
swimmer or bather struck by boat. 98 ALR3d 1127.
Liability for failure as to rescue of seaman who has gone overboard. 91
ALR2d 1032.
Texts:
1 Norris, The Law of Seamen (3d ed), �� 531, 535.
Law Review Articles:
Gold, Vessel Traffic Regulation: The Interface of Maritime Safety and
Operational Freedom. 14 J Maritime L 1-21, January, 1983.
Taylor, Criminal Liabilities of Ships Masters. Lloyds Maritime & Com L Q
499-505, November, 1981.
INTERPRETIVE NOTES AND DECISIONS
1. What constitutes negligence
2. Who is liable
3. Defenses
1. What constitutes negligence
Maximum penalty of $ 1,000 assessed by Coast Guard against pilot of
pleasure boat for negligent operation is proper under 46 USCS � 2302(a)
where (1) hearing officer apparently accepted version of event offered by
pilot of second boat--that first boat came close to second boat at high rate
of speed, thereby creating large wake which tossed second boat and caused
passenger to fall from chair and sustain incapacitating injury requiring
medical attention, (2) pilot of first boat admitted advancing throttle from
1200 RPM to 3200 RPM as he approached entrance to harbor, creating wake, and
arriving at slip 10 minutes before second boat, and (3) speed of second boat
was limited to 1400 RPM, notwithstanding that pilot of first boat claimed
second boat "roared up" behind first boat and crossed wake twice. Green v
United States Coast Guard (1986, ND Ill) 642 F Supp 638.
Operation of vessel at night without navigational lights is sufficient to
find negligent use of vessel since failure to display lights presents
unreasonable risk to other vessels and to darkened vessel itself; actual
damage or injury is not element of this violation, although resulting
damages may affect gravity of particular violation. G-LMI ltr 16781/2, 2
June 80, CGLB, Feb 1980.
Finding of negligent use of vessel in manner so as to endanger life, limb
or property, in violation of predecessor to 46 USCS � 2302 was proper where
record discloses that wheelhouse of vessel in question was left unattended
for 5-10 minutes before collision with another vessel while operator, who
had earlier observed other vessel on nearby parallel course, went below to
make coffee; actions of other vessel, whether contributory to collision or
not, are irrelevant to civil penalty for negligent use of subject vessel.
G-LMI ltr 16731/8, 20 Feb 80, CGLB, Aug 1980.
Vessel is negligently used so as to endanger life, limb, or property
where there is failure to secure exit hatches in heavy weather which permits
water to enter closed but unsecured hatch and cause vessel to sink. G-LMI
ltr 16460/8, 18 June 80, CGLB, Feb 1981.
Failure of vessel master to assure that cargo containers are stowed
securely before ship leaves loading dock for sea and failure of vessel
officers in charge of unloading tanker, having notice of severe leak at
cargo pump, to remedy leak or mitigate its effects, constitute "use of
vessel in negligent manner," within meaning of predecessor to 46 USCS �
2302. G-LMI memo 16732, 12 Nov 80, CGLB, Mar 1982.
2. Who is liable
Pilot, having without necessity adopted dangerous course and having
failed, must bear responsibility. The George H. Dentz (1882, DC NY) 12 F
575.
Any fault for act of licensed pilot in anchoring vessel in space allotted
to loaded instead of light vessels by harbor regulations was not
attributable to vessel. The Severn (1902, DC Va) 113 F 578.
Offending vessel is liable for negligent act of pilot employed under
compulsion, and pilot is liable to vessel employing him and one injured
because of negligent act. Donald v Guy (1903, DC Va) 127 F 228.
Bark anchored in harbor in violation of reasonable harbor regulation, by
tug acting as local pilot, is responsible for act and liable for resulting
collision. The Admiral Cecille (1905, DC Wash) 134 F 673.
3. Defenses
In action for damages from collision due to vessel breaking from her
moorings, it is no defense that vessel was moored by licensed pilot, there
being no law or regulation compelling master to submit to directions of
pilot as to fastenings. Camden & A.R. Transp. Co. v The Lotty (1846, DC NY)
F Cas No 2337a.
Before owner can defeat in personam liability, he must show not merely
applicability of compulsory pilotage provisions, but that collision was not
due to fault of vessel or crew; vessel's unseaworthy condition because of
defective radio transmitter precludes availability of pilotage defense to in
personam liability. Hogge v SS Yorkmar (1977, DC Md) 434 F Supp 715.
End of USCS entry.
They'll be at:
Tacoma Federal Courthouse
1717 Pacific Ave
Tacoma, WA 98402
(253) 593-6313
9:00 am to 4:30 pm
Take I-5 to Exit 133, City Center, follow the signs to City Center - this
puts you on Fwy 705 - take 21st St exit - turn right on Pacific Ave.
Parking:
$5.00/day, $3.00/half-day. VERY LIMITED one hour free parking on the street.
Please post this wherever possible...the protestors will be out in force.
I'd like to see as many Indians as possible at this arraignment, not for a
confrontation but to show that we're determined that these people stay
within the law in their activities against the Makahs, since they seem to
believe that their end justifies their means.
Talk to you later,
mth
