Section 7 of Title 18 provides that the "special territorial and
maritime jurisdiction of the United States" includes:|
(1) The high seas, any other waters within the admiralty
maritime jurisdiction of the United States and out of the jurisdiction of
particular State, and any vessel belonging in whole or in part to the United
States or any citizen thereof, or to any corporation created by or under the
of the United States or of any State, Territory, District, or possession
when such vessel is within the admiralty and maritime jurisdiction of the
States and out of the jurisdiction of any particular State.
Until recently the term "high seas" was always understood as
the open and unenclosed waters of the sea beginning at low-water mark.
In re Ross, 140 U.S. 453, 471 (1891);
Murray v. Hildreth, 61 F.2d 483 (5th Cir. 1932); see also
States v. Rodgers, 150 U.S. 249 (1893) (Great Lakes). Although
become common of late to use the term to describe waters beyond a marginal
or "territorial sea" over which a nation claims special rights, see,
United States v. Louisiana, (Louisiana Boundary Case), 394 U.S. 11,
(1969); United States v. Postal, 589 F.2d 862, 868 (5th Cir.),
denied, 444 U.S. 832 (1979), the classic definition, contemporaneous
this statute's development, is the correct one. The territorial sea was
from 3 to 12 nautical miles by Presidential Proclamation 5928 of December
The words of limitation "and out of the jurisdiction of any
State," that appear in section 7(1) do not qualify the "high seas"
but only the "other waters within the admiralty and maritime jurisdiction of
United States." See Hoopengarner v. United States, 270 F.2d
470 (6th Cir. 1959); Murray v. Hildreth, 61 F.2d 483; see also
United States v. Rodgers, 150 U.S. at 265-66. Accordingly, the fact
a state fixes its boundary beyond the low-water mark and claims jurisdiction
the marginal sea, while relevant to venue, is immaterial to Federal
See Murray v. Hildreth, 61 F.2d 483. Although
states' rights to exercise authority over the marginal sea developed more
than the law governing the jurisdiction of the Federal government over the
marginal sea, see United States v. California, 332 U.S. 19,
(1946), it cannot be doubted that a state may exercise jurisdiction over the
marginal portion of the ocean, provided there is no conflict with Federal
the rights of foreign nations. See Skiriotes v. Florida, 313
69 (1941). Indeed, a state may, subject to the same limitations, enforce
laws upon its citizens and registered vessels on the high seas beyond its
territorial waters. Id. at 77. It is usually the policy of the
Department to defer to a state when it is prepared to undertake prosecution
conduct violative of both state and Federal law.
Despite the apparent universal application of the term "high seas,"
was early held that, as a general rule, Federal criminal jurisdiction does
attach to offenses committed by and against foreigners on foreign vessels.
See United States v. Holmes, 18 U.S. (5 Wheat.) 412 (1890);
United States v. Palmer, 16 U.S. (3 Wheat.) 281, 288 (1818).
however, 18 U.S.C. § 7(8). The Convention on the High Seas to which
United States is a party, purports to give the flag state exclusive
over its vessels on the high seas. However, the Convention has been held
be self-executing with the result that it does not confer on defendants the
to complain of arrests, searches and seizures made without consent of the
state or any subsequent trial. United States v. Postal, 589 F.2d
(5th Cir.), cert. denied, 444 U.S. 832 (1979).
The limitation on Federal jurisdiction when the offense takes place
a river or harbor within the admiralty or maritime jurisdiction of the
States but not "out of the jurisdiction of a particular State," applies to
offenses by naval personnel on naval vessels. See United States
Bevans, 16 U.S. (3 Wheat.) 336 (1818).
"State" in the context of 18 U.S.C. § 7(1) means "State of the
United States." Thus, there is Federal jurisdiction under this provision
offenses committed on American vessels in the territorial waters, harbors
inland waterways of foreign nations. See United States v.
289 U.S. 137 (1933). The port nation may also have jurisdiction if the
disturbs its peace. Id. at 157-59.
Vessels have the nationality of the country where they are
and whose flag they have a right to fly. See United States v.
Arra, 630 F.2d 836 (1st Cir. 1980). See United States v.
439 F.2d 1355 (9th Cir.1971), cert. denied, 404 U.S. 1015 (1972), for
methods of proving nationality. Note that under 18 U.S.C. § 7(1)
jurisdiction attaches if the vessel is even partially owned by a citizen of
United States. See United States v. Keller, 451 F. Supp. 631,
636-37 (D.P.R. 1978), aff'd on other grounds, sub nom
States v. Arra, 630 F.2d 836 (1st Cir.1980).
Venue for maritime offenses committed "out of the jurisdiction of a
particular State" is governed by 18 U.S.C. § 3238. See
States v. Ross, 439 F.2d at 1358-59. Where the offense occurred within
boundaries of a state, venue lies there. See United
States v. Peterson, 64 F. 145 (E.D.Wis. 1894).
Federal prosecution may not be undertaken following a state
for the same conduct without authorization of the Assistant Attorney General
the Criminal Division as provided by USAM
(Petite Policy). Prosecution should not be undertaken following a foreign
prosecution unless substantial Federal interests were left unvindicated.
[cited in USAM 9-20.100]