Page 19: of Maritime Reporter Magazine (October 2003)

Government Update

Territory Defined

Subsequently, a number of federal laws have been enacted that utilize the terms of the Proclamation to define the

U.S. territorial sea for purposes of that particular statute. The Nonindigenous

Aquatic Nuisance Prevention and

Control Act of 1990 was the first feder- al statute to deviate from the traditional three mile limit. It provided that the ter- ritorial sea, for purposes of that Act, would be the belt of seas from the U.S. baseline as determined in accordance with the 1988 Presidential

Proclamation. As part of an effort to deter terrorism against vessels and off- shore facilities (e.g., oil rigs), laws specifically designed to punish such actions were passed. The measures pro- vided, among other things, that for pur- poses of those statutes the U.S. territori- al sea extended seaward 12 n.m. from the baseline.

The situation became immensely more confused with the passage of the

Antiterrorism and Effective Death

Penalty Act of 1996. Section 901 of this statute declares that all of the U.S. terri- torial sea as defined in the 1988

Presidential Proclamation is, for crimi- nal law purposes, part of the United

States, subject to its sovereignty, and is within the special maritime and territori- al jurisdiction of the United States for purposes of title 18, U.S. Code (the fed- eral criminal code).

The section also amended the Federal

Assimilative Crimes Act to include within its ambit the newly expanded ter- ritorial sea, while making clear that this expanded area was not within the juris- diction of the adjacent coastal state. The legislative history of this section is sparse and the goal of Congress in this regard is unclear.

The Ports and Waterways Safety Act was recently amended to add the term "navigable waters of the United States," defined as including "all waters of the territorial sea as described in

Presidential Proclamation 5928 of

December 27, 1988."

This provision expands Coast Guard jurisdiction for purposes of vessel oper- ating requirements, vessel traffic service (VTS) systems, safety zones, many

Captain of the Port (COTP) orders, and port access routes, among other things.

The amendment is not intended to affect innocent passage through the territorial sea or transit passage through U.S. waters of an international strait.

The same new term and definition have been added to Subtitle II (Vessels and Seamen) of Title 46 (Shipping) of the U.S. Code.

October 2003

Since this subtitle defines Coast Guard jurisdiction over U.S. flag vessels for most purposes and over foreign flag vessels for some purposes, its impact is equally extensive. Measures covered by this expanded authority include: negli- gent operation, carriage of dangerous cargoes by foreign flag vessels, lighter- ing, uninspected vessels, recreational vessels, load lines, marine casualty

W* reporting, and federal pilotage authori- zation.

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