A recent case tried before a Coast Guard Administrative Judge charged a licensed operator of a boat which was certificated as a small passenger vessel for rape.
At the time of the incident, the operator was moving the boat by himself from one location to another. He invited a female acquaintance along for the ride. No fees were paid. After the boat arrived at its destination, the two of them engaged in sexual intercourse. During the intercourse, the girl decided to terminate the act but claims the operator persisted. She left the boat and called 911 and he was arrested and later convicted of third degree rape – non-consensual intercourse. The Coast Guard then proceeded against his operator’s license. In an administrative action against his license, the criminal conviction is prima facie evidence of the act. However, the action was defended on the basis of jurisdiction.
In order for the Coast Guard to have jurisdiction, the act for which he was being tried must be committed while, he, the operator was "acting under the authority" of his license as defined in 46 CFR 5.57.
It was argued that since there were only two persons aboard the boat, the operator and his friend, and that the friend had not paid, that the boat was not operating under the authority of its certificate of inspection and thus the operator was not acting under the authority of his license, none being required. Therefore the Coast Guard lacked jurisdiction.
The defense cited 46 CFR 176.01-1 which states in part:
…when carrying not more than 6 passengers, and when operating as a yacht, commercial fishing vessel, cargo carrier, etc., [the boat] will be subject only to the laws, rules and regulations governing the type of operation in which it engages (italics added).
The Coast Guard, contrary to existing practices and the cited regulation, argued first that 46 USC 3313(a) required a certificated vessel to remain in compliance with its certificate of inspection at all times. Taken literally, this would mean that the boat would have to have a licensed operator at all times as well as comply with the other requirements of the certificate. This would apply even if it was involved in commercial fishing or recreational use. Secondly, the Coat Guard claimed that the woman was a passenger under the definition in 46 USC 2101(21) and therefore the boat required a licensed operator under 46 USC 8903…
The license of the individual was revoked by the Administrative Law Judge.
On appeal, the Coast Guard confirmed that 46 USC 3313(a) and 46 CFR 176.01-1 were in conflict. However, the Commandant said:
Due to the industry’s long term reliance on 46 CFR 176.01-1(b), I believe that this regulation cannot be disregarded without appropriate notice to the public…I have therefore adopted a temporary policy of not taking action against vessel owners or licensed personnel that would be inconsistent with this regulation pending the outcome of such rulemaking procedure.
The rulemaking procedure referred to is the proposed rulemaking published in the Federal Register on 30 January 1989 for Small Passenger Vessels which would allow certificates of inspection to be endorsed for an alternate manning when carrying six or fewer passengers. This proposal still doesn’t address the requirement for compliance with the certificate even with the endorsement when operated as a commercial fishing vessel or a pleasure vessel. However, the Coast Guard reversed the Administrative Judge on this issue.
With regard to the second ground for jurisdiction, the Coast Guard upheld the decision. 46 CFR 26.25 last appearing in the 1987 version on the CFR, required a license while carrying passengers for hire. "Passengers for hire" was defined in 46 CFR 24.10-3 as "carriage of any person or persons by a vessel for a valuable consideration." It was based on 46 USC 526f which was superseded during the recodification in 1983 by 46 USC 8903, but the regulations were not updated until 1988 when 46 CFR was deleted. The definition of passenger for hire remains in the regulations but has disappeared from the statutes. The requirement for a licensed operator on uninspected vessels now found in 46 USC 8903 no longer contains the phrase passenger for hire but instead merely refers to a "self-propelled, uninspected passenger vessel." One must go to 46 USC 2101 to find the definition of "uninspected passenger vessel" in subsection (42) and then to the definition of "passenger" in subsection (21). The term "passenger for hire" has disappeared except in the regulations (46 CFR 24.10-3) where it stands as a lonely guard with empty meaning and no statute to back it.
The result for uninspected vessels is not unlike the chicken and egg riddle. Under the definition in 46 USC 2101(43), an uninspected passenger vessel is a vessel carrying not more than 6 passengers. But when you look at the definition of passengers, in 46 USC 2101(21)(D), it says
On an uninspected passenger vessel, [a passenger] means an individual carried on the vessel except (I) the owner or representative of the owner; (ii) the managing operator; (iii) a crewmember…(iv) a guest on board a vessel that is being operated only for pleasure who as not contributed consideration for the carriage aboard.
Well, which comes first? It is not an uninspected passenger vessel unless it is carrying passengers. There are many definitions of passengers, one of which applies to "uninspected passenger vessel." So, in this case, before you can apply the definition of "passenger," the vessel must be an "uninspected passenger vessel." What is missing is the requirement contained in the superseded statute that there must first be a passenger for hire to reach the new definition on an uninspected passenger vessel. Then, and only then, should the current definition be applied. This solves the conundrum that the Coast Guard is faced with and, coincidentally, would have left the Coast Guard without the jurisdiction in the cited case (see Decision of the Commandant of Appeal No. 2497 - accessible through MAC's Homepage, Useful Marine Links, Coast Guard Administrative Law Office).
What does all this mean to the operator and to the attorney who may be involved in defending or pursuing a claim form a collision or for an injury on a vessel which has a valid certificate of inspection as a small passenger vessel, but is neither being used as small passenger vessel (carrying more than six passengers) or exclusively for pleasure. 46 USC 3313(a) requires full compliance with the certificate. On an uninspected vessel, one might argue under the convoluted reasoning that the Coast Guard used in the referenced case that any vessel was an uninspected passenger vessel if not operated solely for pleasure though I think this is stretching the statutory definitions too far.
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