Southeast Shipyard Ass'n v. United States

979 F.2d 1541, 298 U.S. App. D.C. 331, 1992 WL 339406
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 24, 1992
DocketNos. 92-5014, 92-5027 and 92-5058
StatusPublished
Cited by3 cases

This text of 979 F.2d 1541 (Southeast Shipyard Ass'n v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southeast Shipyard Ass'n v. United States, 979 F.2d 1541, 298 U.S. App. D.C. 331, 1992 WL 339406 (D.C. Cir. 1992).

Opinion

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

A vessel can have a nationality. United States ships gain their status through an administrative system of “documentation.” The system dates to the beginning of the nation, when the first Congress adopted statutes corresponding to those in force in England under the reign of George III. See III J. Kent, Commentaries on American Law 105 (1828). Today, as then, a vessel’s certificate of documentation may contain one or more licenses, known as “endorsements,” permitting certain commercial operations. 46 U.S.C. § 12103. United States ships engaged in trade with foreign nations are “registered” and possess a “registry endorsement.” Those engaged in trade between points in the United States possess a license known as a “coastwise endorsement.” United States ships engaged in the Great Lakes trade have a “Great Lakes endorsement.” Those engaged in fishing possess a “fishery endorsement.” 46 U.S.C. §§ 12105-12108.

Under federal maritime law, the eligibility of a vessel for a particular endorsement turns on the vessel’s activity, its ownership and where the vessel was built or rebuilt. See generally Douglas v. Seacoast Products, Inc., 431 U.S. 265, 272-74, 97 S.Ct. 1740, 1745-46, 52 L.Ed.2d 304 (1977). The issue in this case focuses on the qualifications for a fishery endorsement, as modified by the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987, Pub.L. No. 100-239, 101 Stat. 1778 (1988), and the effect of a savings clause in the Act exempting some vessels from compliance with a provision regarding ownership.

I

The importance of a fishery endorsement increased with the enactment of the Fishery Conservation and Management Act of 1976, Pub.L. No. 94-265, 90 Stat. 331. Commonly called the Magnuson Fishery Conservation and Management Act, the legislation gave United States flag ships priority to harvest and process fish, other than those which are highly migratory (16 U.S.C. §§ 1811(a), 1812), within 200 nautical miles “from the baseline from which the territorial sea is measured.” Pub.L. No. 94-265, Title I, § 101, 90 Stat. 336. This vast area, far larger than the land territory of the United States, is now known as the “exclusive economic zone,” a designation derived from Presidential Proclamation No. 5030, 48 Fed.Reg. 10,605 (1983). See Comment, The Exclusive Economic Zone: Its Development and Future in International and Domestic Law, 45 La.L.Rev. 1269 (1983). Despite the “exclusive” in the zone’s title, foreign flag vessels are not, in theory, completely barred from harvesting or processing fish within the region. Under a conservation management system too complicated to describe here, permits to foreign vessels may issue if the total optimum yield for a particular species will be more than that harvested by American fishing vessels. See generally W. McLean & S. Sucharitkul, Fisheries Management and Development in the EEZ: The North, South, and Southwest Experience, 63 Notre Dame L.Rev. 492 (1988). One of the goals of the Magnuson Act was to encourage the growth of the United States commercial fishing industry. Under the Act’s allocation system, Congress supposed that as domestic fishing expanded, foreign involvement would diminish.

The Magnuson Act did not deal with the possibility that foreign interests, faced with restrictions on foreign flag vessels fishing in the Zone, might reflag their vessels in the United States or gain control of American corporations owning American-flag fishing vessels. Both options were open. At the time, a certificate of documentation with a fishery endorsement was needed only for harvesting fish. Fish processing vessels, and apparently fish tender vessels,1 could operate under a registry endorsement, which was the easiest to ob[333]*333tain. See Douglas v. Seacoast Products, Inc., 431 U.S. at 274, 97 S.Ct. at 1746. A foreign-built vessel held by a United States corporation wholly owned by foreign interests could be registered. See J. Walsh & J. Weinstein, Foreign Investment in the U.S. Fishery Industry After the Anti-Reflagging Act of 1987, 22 Int’l Law. 1207, 1208 (1988). The qualifications for a fishery endorsement, needed for vessels engaged in fish harvesting, also allowed room for foreign influence. Although the vessel had to be built in an American shipyard and owned by American citizens, corporations were considered citizens of the country in which they were incorporated. A vessel owned by an American corporation controlled by foreigners would therefore be eligible for a fishery endorsement so long as the corporation’s president and chairman of the board of directors, and a sufficient number of its directors were United States citizens. Id.2

As then-General Counsel of the Department of Transportation, John Hart Ely, pointed out, the Magnuson Act thus did “not absolutely eliminate foreign fishing interests.” Letter to Rep. Leonor K. Sullivan, quoted in E. Fidell, Enforcement of the Fishery Conservation and Management Act of 1976: The Policeman’s Lot, 52 Wash.L.Rev. 513, 521 n. 37 (1977). It was not until passage of the Anti-Reflagging Act of 1987 that Congress legislated on the subject. The Anti-Reflagging Act required fish processing and fish tender vessels to obtain a fishery endorsement, 46 U.S.C. § 12101(a)(1), and provided that vessels rebuilt on or after July 28, 1987, could retain eligibility only if an American shipyard did the rebuilding, 46 U.S.C. § 12108 note. Of importance here, the Anti-Re-flagging Act altered the eligibility of fishing vessels owned by American corporations: “A vessel owned by a corporation is not eligible for a fishery endorsement under section 12108 of this title unless the controlling interest (as measured by a majority of voting shares in that corporation) is owned by individuals who are citizens of the United States.” 46 U.S.C. § 12102(c)(1).

A savings clause in the Anti-Reflagging Act, the meaning of which is in dispute, ameliorated the impact of the citizen control requirement just quoted. The clause reads:

[The citizen control requirement] applies to vessels issued a fishery license after July 28, 1987. However, that [requirement] does not apply if before that date the vessel—
(1) was documented under chapter 121 of title 46 and operating as a fishing, fish processing, or fish tender vessel in the navigable waters of the United States or the Exclusive Economic Zone; or
(2) was contracted for purchase for use as a fishing, fish tender, or fish processing vessel in the navigable waters of the United States or the Exclusive Economic Zone, if the purchase is shown by the contract or similarly reliable evidence acceptable to the Secretary to have been made for the purpose of using the vessel in the fisheries.

46 U.S.C.

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979 F.2d 1541, 298 U.S. App. D.C. 331, 1992 WL 339406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southeast-shipyard-assn-v-united-states-cadc-1992.