FOREIGN SEIZURES OF U.S. FISHING VESSELS THURSDAY, JUNE 22, 1967 HOUSE OF REPRESENTATIVES, WILDLIFE CONSERVATION OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES, Washington, D.C. The subcommittee met at 10:15 a.m., pursuant to call, in room 1334, Longworth House Office Building, Hon. John D. Dingell (chairman of the subcommittee) presiding. Mr. DINGELL. The Subcommittee on Fisheries and Wildlife Conservation will please come to order. This morning the subcommittee will begin hearings on several bills designed to increase the reimbursement coverage to include all losses sustained by owners of U.S. fishing vessels illegally seized by foreign countries. As I am sure all of you are aware, the 1954 Fishermen's Protective Act provides that where a vessel of the United States is seized by a foreign country on the basis of rights or claims in territorial waters or the high seas which are not recognized by the United States and a fine must be paid by the owner to secure release of the seized vessel, such owner is entitled to reimbursement from the U.S. Treasury for the amount of the fine only. H.R. 5148 by Mr. King, and identical bills H.R. 6785 by Mr. De la Garza and H.Ř. 4153 by Mr. Van Deerlin-which is substantially the same would expand the reimbursement coverage to include, in addition to the fine, all losses suffered by the owner arising out of the seizure of such vessel, as well as loss of income to the crew. H.R. 4350 by Mr. Bob Wilson of California, and identical bill H.R. 4346 by Mr. Utt, would expand the reimbursement coverage to include all losses to the owner and crew, and, in addition, would provide a formula for determining the value of the fish not caught and the manner in which such funds would be distributed between the owner and the crew. The bills would further provide that with respect to persons receiving payment under this legislation the U.S. Government would be subrogated to all rights or claims accruing to such person under any other provision of Federal or State law or policy of insurance. H.R. 4451 by Mr. Pelly, and identical bills H.R. 4452 by Mr. Reinecke and H.R. 9015 by Mr. Bob Wilson of California, in addition to similarly expanding such coverage would further provide that in any case in which the seizing country fails to make reimbursement within 120 days after demand, the Secretary of State would be required to notify the President of such refusal and the President would be required to immediately suspend all assistance under the Foreign Assistance Act of 1961 until such reimbursement has been paid. Without objection, the bills and departmental reports will appear in the record at this point. (The bills and reports follow:) [H.R. 5148, H.R. 6785, 90th Cong., first sess.] BILLS To amend the Act of August 27, 1954, relating to the protection of vessels of the United States on the high seas and in territorial waters of foreign countries Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 3 of the Act entitled "An Act to protect the rights of vessels of the United States on the high seas and in territorial waters of foreign countries”, approved August 27, 1954 (22 U.S.C. 1973), is amended to read as follows: "SEC. 3. In any case where a vessel of the United States is seized by a foreign country under the conditions of section 2 of this Act, the owners of such vessel shall be reimbursed by the Secretary of the Treasury in an amount certified to by the Secretary of State as the amount necessary to reimburse the owners for all losses and claims arising out of such seizure, including, but not limited to, loss of the vessel, fishing gear, equipment, catch, and loss of income resulting from enforced idleness of the vessel after detention and before release, all fines, fees, or other charges arising out of such seizure (including fees, charges, and related costs for fishery permits or licenses) paid to such foreign country to secure prompt release of the vessel and crew, and all other reasonable expenses incurred in connection with such seizure." [H.R. 4153, 90th Cong., first sess.] A BILL To amend the Act of August 27, 1954, relating to the seizure of vessels of the United States by foreign countries Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act entitled "An Act to protect the rights of vessels of the United States on the high seas and in territorial waters of foreign countries", approved August 27, 1954, is amended by renumbering sections 4, 5, and 6 as sections 5, 6, and 7, respectively, and by adding after the existing section 3 of the following new section: "SEC. 4. In any case where a vessel of the United States is seized by a foreign country under the conditions of section 2, the owners of the vessel shall be reimbursed by the Secretary of the Treasury for any loss and costs, including but not not limited to, the loss of fishing gear, vessel, equipment, catch, and the loss of income resulting from the forced idleness of such vessel after such detention and before release. Such reimbursement costs shall include, but not be limited to, any reasonable expenses in connection with such seizure, any fees, or other charges arising out of such seizure, and any fees or charges for fishery, permit fees or license or other similar fee and related costs that are paid to the foreign country in order to secure the prompt release of the seized vessel and its crew." [H.R. 4346, H.R. 4350, 90th Cong., first sess.] BILLS To amend the Act of August 27, 1954, relative to the unlawful seizure of fishing vessels of the United States by foreign countries Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act of August 27, 1954 (68 Stat. 883; 22 U.S.C. 1971-1976), is amended by adding at the end thereof a new section to read as follows: "SEC. 7. (a) In any case where a vessel of the United States, which is documented or certified as a fishing vessel, is seized by a foreign country and detained under the conditions of section 2 of this Act, the Secretary of the Treasury shall pay such sums as the Secretary of the Interior determines to be equitable "(1) To reimburse the owners of such vessel for all costs directly resulting from such seizure and detention, including, but not limited to, the damage or destruction of the vessel, the loss of damage of fishing gear or other equipment, dockage fees, utilities, and seized fish; "(2) to compensate the owners of such vessel and its crew for the fish that were not caught as a direct result of such seizure and detention based on the value of the average catch per day at sea during the three most recent calendar years immediately preceding such seizure and detention either (A) of all fishing vessels of the United States engaged in the same fishery as that of the type and size of the seized vessel, or (B) of the vessel seized, whichever, as determined by the Secretary of the Interior, is the most reasonable and equitable: Provided, That such compensation shall be distributed by the Secretary in accordance with the usual practices and procedures of the particular segment of the United States commercial fishing industry to which the seized vessel belongs relative to the sale of fish caught and the distribution of the proceeds of such sale; (3) to compensate the heirs or legal representatives of any fisherman for a death resulting directly from such seizure and detention; and "(4) to compensate a fisherman or his heirs or legal representatives for any injury resulting directly from such seizure and detention. "(b) All determinations made under this section shall be final. Persons receiving payments made under this section for such seizure and detention shall not be eligible to receive any compensation, reimbursement, or other payments for such seizure and detention under any other provision of Federal law. The United States shall be subrogated to all rights or benefits accruing under any other provision of Federal or State law or policy of insurance to any person eligible for payments under this section. The Secretary of the Interior, in consultation with the Secretary of State and the Secretary of the Treasury, shall issue such rules and regulations as he deems advisable to carry out the provisions of this section." SEC. 2. Section 3 of the Act of August 27, 1954 (68 Stat. 883; 22 U.S.C. 1973) is amended by inserting "or license fees, or both," after the word "fine" wherever it appears. [H.R. 4451, H.R. 4452, H.R. 9015, 90th Cong., first sess.] BILLS To reimburse owners of vessels of the United States for losses and costs incurred incident to the seizure of such vessels by foreign countries, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 3 of the Act entitled "An Act to protect the rights of vessels of the United States on the high seas and in the territorial waters of foreign countries", approved August 27, 1954 (22 U.S.C. 1973), is amended to read as follows: "SEC. 3. The owner of a vessel of the United States seized by a foreign country under the conditions set forth in section 2 is entitled to reimbursement for costs paid, or losses suffered, by him incident to such seizure. Such costs or losses may include, but are not limited to: "(1) any fine imposed by such country to secure the prompt release of the vessel and crew; "(2) any fees or charges for fishing permits or licenses paid to such country to effect such release; "(3) loss of fishing vessel, gear, equipment, and catch; "(4) loss of income (including crew shares) resulting from the forced idleness of such vessel after seizure and before release; "(5) compensation paid as a result of the death of, or injury to, a crewmember incident to such seizure; and "(6) any other reasonable expenses incurred in connection with such seizure." SEC. 2. Section 5 of such Act of August 27, 1954 (22 U.S.C. 1975), is amended to read as follows: "SEC. 5. (a) The Secretary of State shall take such action as he deems necessary to make and collect on claims against a foreign country for amounts expended by the United States under the provisions of this Act because of the seizure of a United States vessel by such country. "(b) In any case in which a foreign country fails or refuses to make payment, within one hundred and twenty days after demand, to the Secretary of State on any claim made by the Secretary under subsection (a), he shall notify the President of such refusal and the President shall immediately suspend all assistance of such country under the Foreign Assistance Act of 1961 until the Secretary of State certifies to the President that such claim has been paid." U.S. DEPARTMENT OF THE INTERIOR, Hon. EDWARD A. GARMATZ, Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. GARMATZ: Your committe has requested this Department's views and recommendations on a series of bills amending the Act of August 27, 1954 (22 U.S.C. 1971-1976) popularly known as the Fishermen's Protective Act. These bills are: H.R. 4153, H.R. 4346, H.R. 4350, H.R. 4451, H.R. 4452, H.R. 5148, and H.R. 6785. We recommend the enactment of the enclosed draft bill in lieu of the above bills. The Fishermen's Protective Act directs the Secretary of State to attend to the welfare of the crew of any vessel of the United States seized by a foreign country on the basis of rights or claims not recognized by this country in territorial waters or on the high seas. The State Department is also directed to secure the release of the vessel and crew. In carrying out these functions, the Secretary must find that there is no dispute of material facts relative to the vessel's location and activities when seized. If the vessel owners must also pay a fine to secure release, then the Act directs the Secretary of the Treasury to reimburse the owner in an amount that represents the fine. The Act does not apply to seizures made by a country at war with the United States or seizures made under a fishery convention or treaty to which the United States is a party. The Secretary of State is also directed to recover from the foreign country the amounts expended by the United States under this Act. The Act applies to fishing vessels and other vessels of the United States. H.R. 4346 and H.R. 4350 would add a new section to the Act authorizing payments (1) to vessel owners for all costs incurred as the result of the seizure and detention by a foreign country; (2) to the owners and their crews for loss of fishing time resulting from such seizures; (3) to the heirs of any fishermen for a death resulting from such seizure; and (4) to the fisherman and his heirs for injuries sustained because of such seizure. These bills also authorize the reimbursement of license fees. H.R. 4451 and H.R. 4452 would amend section 3 of the Act. The amendment would entitle a vessel owner to be reimbursed for costs paid or losses suffered by reason of a seizure. Such costs include the cost of fines, permits, or licenses; and the loss of the fishing vessel, gear, catch, and equipment; and the loss of income and death benefits. These two bills also amend section 5 of the Act. The amendment directs the President to suspend all assistance under the Foreign Assistance Act of 1961 to the offending country if that country fails or refuses to reimburse the United States within 120 days after the demand by the Secretary of State for its expenditures under this Act. H.R. 4153 would add a new section 4 to the Act. This bill would, like H.R. 4451 and 4452, reimburse the vessel owners for losses and costs incurred by the unlawful seizure. H.R. 5148 and H.R. 6785 would amend section 3 of the Act. The amendments are similar to those made by H.R. 4153. The Fish and Wildlife Act of 1956, as amended (16 U.S.C. 742a et seq.), declares that the fishing industry, in its several branches, can prosper and thus fulfill its proper function in national life only if certain fundamental needs are satisfied by means that are consistent with the public interest and in accord with constitutional functions of governments. Among these needs are: "(2) Protection of opportunity- *** to fish on the high seas in accordance with international law;". In administering the 1956 Act, this Department strives to stimulate the development of a strong, prosperous, and thriving commercial fishing industry. We have consistently encouraged the United States commercial fishing industry to increase rapidly their exploitation of the fishery resources of the high seas— that is, beyond the territorial waters of foreign countries. In addition, the United States has constantly, over the years, asserted the doctrine of the freedom of the seas. In this regard, the Department of State in 1954 said: "The traditional policy of the United States is to support the principle of the freedom of the seas, and it has consistently opposed the efforts of other countries to limit the freedom of the seas by excessive claims to territorial waters. It is the practice of the Department officially to protest claims to the territorial waters greater in breadth than 3 marine miles from the coast [and fisheries jurisdiction in excess of 12 miles] since it is the view of the Department that under international law it is not required to recognize such claims. * * * In implementation of that policy every reasonable peaceful effort is being made by the Department to protect American nationals engaged in fishing or other occupations on the high seas." (See S. Rept. No. 2214, 83rd Cong.) Despite this policy, American fishing vessels continue to be harassed and unlawfully seized and detained while conducting fishing operations on the high seas. The illegal seizure and unlawful detention of United States fishing vessels is the result of certain nations extending their jurisdiction over extreme distances from their coasts, to as much as 200 miles, far beyond internationally accepted limits. In a recent case, seizure took place about 75 miles off the coast of the offending foreign country. The United States Government has firmly and consistently taken the position that such extension of jurisdiction has no basis in international law. On the occasion of each unlawful seizure, the United States Government has lodged strong protests against the responsible government and has devoted considerable efforts in seeking the release of the detained vessel as expeditiously as possible. The illegal seizures and detentions of our fishing vessels continue and, in fact, appear to be increasing. With more countries unilaterally making similar unreasonable and unjustified claims, it is likely that such seizures may well increase. Efforts to resolve the problem of fisheries jurisdiction by negotiation have been largely unproductive and, more importantly, have been extremely slow in the eyes of the affected fishermen and vessel owners who are exercising their rights under the "freedom of the seas" doctrine. The principal purpose of the 1954 Act is to provide a clear direction to the Secretary of State to take whatever steps may be necessary to insure the welfare of a seized vessel and its crew while it is unlawfully detained by a foreign country and to obtain the immediate release of the vessel and crew. In addition, the 1954 Act provides that if a fine must be paid by the vessel owners to obtain the release of the vessel and crew, then such owners shall be reimbursed by the United States. The reimbursement directly relates to, and is in aid of, the primary purpose of the Act-namely, the prompt release of the vessel and crew. To this extent, the 1954 Act has been successful and a decided aid to the commercial fishing industry in this country. These seizures and subsequent detentions, however, represent a nuisance to the vessel owner, and, in some cases, a constant source of danger to themselves and their crews. Even more importantly, these seizure and detentions result in substantial economic losses to these United States citizens. The objective of the bills is to give these fishing vessel owners and, indirectly, their crews an opportunity to recoup some of these losses. We believe that this objective is desirable, but this legislative approach may establish an undesirable precedent. We believe that such legislation might establish an undesirable precedent because the items of cost which are related to the unlawful seizure and detention of vessels of the United States that would be eligible for reimbursement are in reality claims against foreign countries. These claims are no different from any other claims, such as the shooting down of a plane in international air space over the high seas, which are made by United States citizens annually. These latter claims are not now paid with Federal funds, but are preferred against the foreign governments. It is believed that these bills might establish a precedent which later could be used to support similar legislation to pay these other claims. We believe that some additional assistance to United States fishermen is needed while negotiations are continued with the foreign countries to resolve the problem of fisheries jurisdiction. We believe that the enclosed draft bill will provide this assistance and avoid the precedent we have just mentioned. The draft bill authorizes a 4-year program of guarantees to the vessel owners and their crews. Under the bill, the Secretary of the Interior will guarantee the vessel owners that he will reimburse them for any costs incurred as a direct result of illegal seizure or detention, or both, for loss. etc., to his vessel, gear, or equipment, and for dockage fees, utilities, and the market value of any fish seized. In addition, the Secretary will pay such owners and their crews up to 50 percent of any income lost as a direct result of such illegal seizure or detention, or both. In making this latter payment, the Secretary will base his determination on the value of the average catch per day's fishing during the three most recent calendar 82-015-67-2 |