Page 18: of Maritime Reporter Magazine (September 2002)

Government Update ulations that have not been adhered to in years. The U.S. Coast Guard is prepar- ing to do likewise. Particularly with regard to the newly-reinvigorated INS policy, the question of due process is germane.

The federal government is preparing to implement a transportation worker's identification card system at the same time that it is negotiating at the Interna- tional Maritime Organization (IMO) in

London and the International Labor

Organization (ILO) in Geneva for adop- tion of a universal mariner's identifica- tion card.

Crewmembers are being branded as threats to U.S. national security, but the individuals affected, the masters, own- ers, operators, managers, and agents are not being advised of the basis of the alle- gations. Further, masters are not even being allowed to remove the "suspect" crewmember from the vessel. Such removal would both reduce the alleged risk to national security and eliminate the requirement for hiring commercial guard service. In many instances, the masters are not even being advised of the reason for the requirement for guard service.

It is questionable whether INS has the authority to require a master to hire a commercial guard service merely because INS has issued a "detain on board" order with regard to a particular crewmember. The pertinent statute merely requires the master to receive and detain the crewmember. The regu- lations largely repeat the statutory pro- vision. The words 'guard' or 'guard ser- vice' appear in neither the statute nor the regulations.

This would not be the first time that

INS has overstepped its authority. In the mid-1990s, INS was demanding that sea and air carriers pay detention costs (including the cost of guard services) in cases where a stowaway alleged politi- cal asylum. Processing of asylum cases can be lengthy and the detention costs can be high. Various sea and air carriers brought separate actions against INS for recovery of monies expended in accor- dance with the INS orders. The appel- late courts held that INS lacked authori- ty to require the carriers to bear the expense of detention.

On the diplomatic level, the question arises with regard to how the United

States Government can engage in mean- ingful negotiations in an international forum to develop a universal standard for mariners' identification cards when it is actively working on the domestic level to implement a unilateral scheme.

Only time will whether the two process- es will be compatible.

It is presently unclear how many mariners will be caught up in the

NSEERS Program and required to be fingerprinted and complete new docu- mentation. If the incidence of "detain on board" orders is any indication, though, the number could be quite high.

Conclusion

Foreign mariners on foreign ships carry 95 percent of U.S. imports and exports. The U.S. economy would grind to a halt without them and their ships. They have carried U.S. military personnel and U.S. military equipment on a regular basis since at least World

War I. While the United States certain- ly needs to exercise heightened vigi- lance subsequent to September 11, 2001, the need to "detain on board" large numbers of foreign mariners is less than clear, and certainly has not been explained to those involved or to the public at large. Until and unless a public explanation of the new processes is forthcoming, the U.S. Government will lack moral authority in this regard.

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