Coast Guard Authority to stop, "board" vessels

[eneumeier]

About a month ago 2 of our law-abiding members were stopped while paddling in Gloucester Harbor and asked to show identification. The "stoppers" then completed a two-copy form on each "stoppee", kept one and gave the other to the "stoppee" with instructions to carry it in case they were stopped again. I was curious about the authority to ask for a show of ID, since no one is required to carry an ID while paddling a kayak, as you are while driving a car. Today, I finally had time to phone the Gloucester harbormaster (a former CG guy) and we had a good chat. 

The relevant Federal statute is 14 USC 89(a) and it reads;
The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the U.S. has jurisdiction, for the prevention, detection, and suppression of violations of the laws of the U.S. For such purposes, commissioned, warrant, and petty officers, may at anytime, go aboard any vessel subject to the jurisdiction or to the operation of any law of the U.S., address inquiries to those on board, examine the ship's documents and papers, and examine, inspect, and search the vessel, and use all necessary force to compel compliance.

You are required to answer their inquiries and tell them who you are. You are not required to show or to carry an ID. It is always smart to cooperate. Failure to do so can result in a fine of $500.

If you want to study up, I found these flashcards:  https://www.flashcardmachine.com/uscg-boarding-officer2011.html

Lest you think that, under the 4th amendment, they need "probable cause" to stop and question you, this blog has a good explanation as to why that is NOT so. If you can't read it below, go directly here: https://navwaters.com/2012/11/12/the-fourth-amendment-rights-vs-boarding-power-of-the-united-states-coast-guard/ 

We also talked about the night lighting requirement. He said the white light is supposed to be on, all the time. I said that for kayakers, that is a hazard because it ruins night vision. He said I would not want a boat coming at me at 40 MPH, unable to see me. I said true, but I will be paddling close to shore, where such a boat could not be. He acknowledged the night vision problem for us and I told him I would be paddling in the harbor this Sunday evening. :-)  I always carry 2 white lights. Liz

 

The Fourth Amendment Rights vs. Boarding Power of the United States Coast Guard

November 12, 2012 By Will Bland

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Amendment IV, U.S. Constitution, ratified 12/15/1791.

The Fourth Amendment to the U.S. Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.  It was written in direct response to British general warrants which empowered British law enforcement to search virtually any home, at any time, for any reason, or for no reason at all.

The Coast Guard’s primary law enforcement authority is derived from 14 USC 89 (made law in1949) which states in part, “The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of the laws of the United States for such purposes, commissioned, warrant and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operations of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance . . .”

While the Fourth Amendment may protect the citizen, law abiding or not, from the threat of an “unwarranted” search, that protection ceases once the citizen is on a vessel.  The Coast Guard has sweeping authority to board any vessel (subject to the jurisdiction of the United States) at any time, any place.  It does not require a warrant.  It does not require probable cause.  Boardings need not be based on a suspicion that a violation already exists aboard the vessel.  Their purpose is to prevent violations and the courts have upheld this authority.  Also, the Coast Guard has full legal law enforcement power on any land under the control of the United States, as needed to complete any mission.  14 USC  89 has its roots in the Revenue Service Act of 1790 which provided “all collectors, naval officers, surveyors, inspectors and the officers of the revenue cutters . . . to go on board ships in any part of the United States . . . for the purposes of demanding manifests . . . examining and searching the said ships, and the officers shall have free access to the cabin and every other part of the vessel . . .”  This statute was passed by the first Congress, the same Congress that enacted the Bill of Rights, including the Fourth Amendment with its guarantees for citizens to be secure against unreasonable searches and seizures.  By enacting the Revenue Service Act, the first Congress showed unequivocally that the Coast Guard’s significant law enforcement authorities to board and search a U.S. flag vessel anywhere in the world, as well as vessels intending to call on U.S. ports, were consistent with the Fourth Amendment.

U.S. Courts over the last 200 years have consistently validated the right of the Coast Guard to board and inspect vessels, probable cause or not.

Plainly stated, when it comes to Coast Guard boarding, you don’t have any rights.  As stated by Capt. Rasicott and CDR Cunningham in their article found in Proceedings, Summer 2009;  “There are two main ways to board a vessel – either with permission, or without.”

Vessel operators should know that to refuse permission for Coast Guard personnel to board may subject them to a penalty of $500.   Forcibly resisting is a felony punishable by up to ten years in prison and a $10,000.00 fine.

The unfettered search authority by the Coast Guard has its merits, especially in a world where random acts of terrorism are a constant threat and smuggling of illegal drugs into the U.S. is rampant.  Supporters also point out that “the government certainly has a vital interest in ensuring vessels on the high seas are safe, seaworthy, and properly documented.”  See Constitutional Barriers to Smooth Sailing;  14 U.S.C. 89(a) and the Fourth Amendment by Megan J. Knight.  Indiana Law Journal Vol. 72, Issue 2.  In her article, Ms. Knight recognizes the inherent conflict between the U.S. citizen’s expected right to privacy and 14 U.S.C. 89, and suggests that these vital interests, however “should not be advanced at the cost of sacrificing the constitutional freedoms of law abiding seafarers.”

However, if you are expecting the Courts to reverse decades of decisions finding that 14 U.S.C. 89 searches are not in conflict with the Fourth Amendment, forget about it.  In today’s society where everyone is subject to mandatory searches without probable cause every time you board an airliner, enter a government building, state or federal, or major sporting event, the power of the Coast Guard to search any vessel at any time is not going to be fettered.  It will take an act of Congress and that will never happen.

For excellent in depth analysis of the Fourth Amendment and 14 U.S.C. 89 see also The United States Coast Guard’s Law Enforcement Authority’s under 14 U.S.C 89; Smuggler’s Blues or Boaters’ Nightmare by Greg Shelton, William and Mary Law Review, Vol. 34, Issue 3; and Coast Guard Boardings and Your Fourth Amendment Rights, Part 1 – 3, by Clark Beek 10-12, www.sailfeed.com.

[Inverseyourself]

Interesting.

Did they identify themselves, CG, Gloucester Police marine patrol? Why would they even get involved with a couple of paddlers? Did they make an equipment check (communication, signals, PFD-type, etc.)?

I have a small white light on one side of my PFD at all times (never use it, even in twilight but would use it with boat traffic present). Are there any mandatory rules about brightness, location, feet above deck etc. of a white light?

Andy

P.S.: I for one would always comply with ANY request by CG, Harbormaster or police since I would want to avoid them boarding and searching my "vessel" under any circumstances.

[EEL]

16 hours ago, Inverseyourself said:

" Are there any mandatory rules about brightness, location, feet above deck etc. of a white light?"

Leaving aside any state requirements which may apply, the only requirement under the Navigation Rules for kayaks is that a device be available to display a white light in sufficient time to prevent a collision.  Rule 25(d).  Note it is not required that the light be displayed except as needed to prevent a collision.  As a practical example of what might be deemed adequate to comply, a friend of mine carried one of those million candlepower lamps in the cockpit when paddling in lower Casco Bay near Portland to be sure he could get the attention of another vessel.  In upper Casco Bay, a simple headlamp or small flashlight might suffice. 

Ed Lawson

[Marty Jensen]

There were 28 paddler deaths in the Northeast last year. Coast Guard is getting pretty serious about safety enforcement and education.

Coast Guard to enforce Operation Paddle Smart

[eneumeier]

I fully support Operation Paddle Smart and think it is great that the Coast Guard is checking for pfds and whistles. (I do wish the data separated canoes and rec kayaks from sea kayaks.) My surprise, and hence research, was about the demand to see an ID. NSPN used to publish two safety brochures, one for recreational paddling and the other for ocean kayaking, that were distributed at REI and elsewhere. I have attempted to upload them here. Liz

Ocean Safety Brochure no ACA 2011 version.pdf

Recreational Safety Brochure no ACA 2011 version.pdf

[rick stoehrer]

i will still not be carrying an ID to show the CG.

statute is below....white light to be used in sufficient time to avoid collision....

§ 83.25 Sailing vessels underway and vessels under oars (Rule 25).

(a) A sailing vessel underway shall exhibit:

(i) Sidelights; and

(ii) A sternlight.

(b) In a sailing vessel of less than 20 meters in length the lights prescribed in paragraph (a) of this Rule may be combined in one lantern carried at or near the top of the mast where it can best be seen.

(c) A sailing vessel underway may, in addition to the lights prescribed in paragraph (a) of this Rule, exhibit at or near the top of the mast, where they can best be seen, two all-round lights in a vertical line, the upper being red and the lower green, but these lights shall not be exhibited in conjunction with the combined lantern permitted by paragraph (b) of this Rule.

(d)

(i) A sailing vessel of less than 7 meters in length shall, if practicable, exhibit the lights prescribed in paragraph (a) or (b) of this Rule, but if she does not, she shall exhibit an all-round white light or have ready at hand an electric torch or lighted lantern showing a white light which shall be exhibited in sufficient time to prevent collision.

(ii) A vessel under oars may exhibit the lights prescribed in this Rule for sailing vessels, but if she does not, she shall exhibit an all-round white light or have ready at hand an electric torch or lighted lantern showing a white light which shall be exhibited in sufficient time to prevent collision.

(e) A vessel proceeding under sail when also being propelled by machinery shall exhibit forward, where it can best be seen, a conical shape, apex downward. A vessel of less than 12 meters in length is not required to exhibit this shape, but may do so.