Views on the issue vary widely, with boat owners largely disclaiming
responsibility for their fares’ transgressions.
Others, including some members of the law enforcement community,
disagree.
Both sides have made reasonable cases to support their
positions.
On one hand, boat owners have
argued that they can’t be held responsible for the actions of people not under
their direct control. They point out
that they have no law enforcement authority to search anglers’ coolers, and
note that if they tried to do so, they could be met with a violent response.
On the other hand, there is no doubt that they reap a
financial benefit from the illegal fishery, as some percentage of their
customers would not venture out, or would board less diligent vessels, if some for-hire
operators made an aggressive effort to ensure that their customers obeyed the law.
The report has value.
Although it doesn’t contain any surprising revelations, it does provide
insight into the boat owners’ concerns, and clears up some of the issues that
have been debated for the past year or more.
Attendees agreed on a number of points.
There was a general consensus that the National Marine
Fisheries Service, the Atlantic States Marine Fisheries Commission and representatives
of the for-hire community should work together to develop “best management
practices” that would promote compliance with existing rules. Vessel operators who prominently posted
current regulations on their vessels, frequently reminded their passengers of
the regulations over the course of the fishing day, provided customers with
rulers and/or other means to measure their fish when they are caught, and
promoted personal accountability by providing each customer with containers for
their catch and individual measuring devices would be going a long way toward
meeting that goal.
There was also general agreement that there should be more
communication between law enforcement and the for-hire fleet, so that members
of that fleet could better understand their responsibility under state and
federal regulations, along with general agreement that federal and state law enforcement personnel should meet with for-hire operators to review practices
and procedures related to enforcement and compliance. And there was consensus that regulators should
consider the difference between the charter and party boat fisheries when putting
rules in place.
Those are all topics that deserve some follow-up, but they
did not dispose of some of the most basic questions, including the most important
one of all: Can the operator of a party
or charter boat be held legally responsible for illegal fish taken by a vessel’s
fares?
In most jurisdictions, the answer to that question seems to
be “Yes," at least part of the time.
Operators can certainly be held liable when customers breach federal
regulations. In answer to the
awkwardly-worded question
“If the operator does his due diligence at the start of a
fishing trip in announcing of regulations, providing posted regulations and
measuring devices sufficient for an operator to do to place the burden of
compliance on a customer? [sic]”
a federal law enforcement representative responded
“Under federal regulations 50 CFR part 648, violations on
board a vessel carrying more than one person may be attributed to the owner and
operator of the vessel.”
A number of examples from regulations governing various
Mid-Atlantic species were provided.
At the state level, the operator’s level of responsibility
for customers’ violations varies widely.
In Maine, a licensed guide (which can include a for-hire
captain) who assists a customer violate the law is also deemed responsible. If a guide knows that a customer violated the
law, but didn’t actively provide assistance, is required to notify law
enforcement of such violation within 24 hours; failure to do so constitutes a
violation on the part of the guide.
That is probably the most stringent rule, although other
states also will charge the vessel operator under many circumstances. A South Carolina representative informed the
workshop that
“If we check a charter (6-pack for hire) and find violations
we charge the Captain of the vessel.
This has held up in court for us on numerous occasions. On a head boat we have charged individuals,
mates and/or Captains for violations and this has held up in court for officers
as well. These charges have held up for us
in the different courts we have along our region as with any case some require
getting statements from the paying customers (patrons) in order to assist our
prosecution.”
In Rhode Island,
“In any instance when there is a violation of the size,
possession, or daily limit on board a vessel carrying more than one person when
the catch is commingled, the violation shall be deemed to have been
committed by the owner of the vessel, or the operator of the vessel, if the
owner is not on board. [emphasis added]”
Virginia, like Rhode Island, limits operators’ liability to
fish held in a common container.
A plurality of states appear to give law enforcement
officers discretion to place responsibility on the individual angler, based on
the circumstances of each case. New
Hampshire limits legal liability for another’s violation to anyone
“who counsels, aids or assists in [such] violation.”
Other states apply a similar standard, even if it isn’t as
clearly expressed in a statute. Massachusetts’
regulation clearly invites law enforcement officers to exercise their judgment
in deciding who to charge, saying
“an individual patron, as well as the named for-hire permit
holder or for-hire vessel operator, may each be held liable for any violation
of recreational size, possession or daily bag limits…that are attributable to
the patron…In enforcing this provision, law enforcement officers may exercise
their discretion on whether to cite the named for-hire permit holder or
for-hire vessel operator [if such permit holder or operator has made a
reasonable effort to ensure passenger compliance].”
The Massachusetts rule has proven to be a reasonably
effective tool to police that state’s recreational scup and black sea bass
fishery, which has been prone to flagrant poaching on some for-hire boats, and
is the same fishery that gave rise to New York’s more infamous violations. Massachusetts provided information to the
workshop that noted that the regulation
“resulted in multiple incidents involving gross non-compliance
on for-hire vessels. Three of those
incidents have resulted in…adjudicatory proceedings to revoke or suspend
for-hire permits.”
In one of those
proceedings
“The settlement in the Matter of Forsberg (Viking Starship) required
the operation to: (1) provide trip
tickets to all patrons informing them of the various rules governing the target
species; (2) provide conspicuously posted signs of applicable rules and
regulations throughout the vessel; and (3) frequently announce said rules to
patrons over their loud speaker.
Additionally, Forsberg volunteered to not retain the crew involved in
the incident and hire a new crew, which would include an additional crew member
dedicated to monitoring the patron’s catch.”
In another proceeding,
“The settlement in the Matter of Faltus (Captain Leroy)
contained similar requirements regarding the conspicuous posting of signs and
frequent announcements to remind patrons of the rules. Additionally, it required that the operation
maintain a list of all anglers onboard the vessel and provide each angler with
a marked bag that corresponded to the name on the list. Lastly, crew were prohibited from conducting
fishing activity beyond assisting patrons handle and remove catch and if they
observed non-compliance they were to alert the [Massachusetts Environmental
Police].”
So yes, it can be done.
For-hire vessels can be held responsible for tolerating “gross non-compliance”
by their patrons. And it’s in the cases of such “gross
non-compliance” where holding operators responsible makes sense, because it’s
unlikely that significant violations go unnoticed by the folks on deck.
On the other hand it doesn’t make much sense, in the real
world, to try to hold the boat and crew legally liable when someone takes just
a fish or two over the limit, or tries to stash a short under the ice and
untapped Budweiser cans.
Yet some state’s laws make holding the vessel operator
liable very difficult, even when it’s clear that “willful ignorance” is
involved. New York law enforcement
informed the workshop that
“Our regulation refers to the fisher and does not put
liability on the charter operator or crew.
Anyone aiding in illegal take is guilty as well…If crew fillets, takes
direct possession for storage, or is observed dehooking and placing into
container for fare, we will write the crew member of captain if he chooses to
take responsibility for the crew’s action.
We generally don’t treat the operating the charter [sic] as aiding or
knowingly proceeding from the fare’s illegal take.”
Such a regulation makes it difficult for officers to enforce
the law, even in the case of “gross non-compliance,” because the odds are good
that there was no law enforcement officer on board the vessel to observe
whether the crew aided in illegal take, making it impossible to cite anyone
besides the angler once the boat is back to the dock.
It may help to explain why some of the most blatant examples
of customer non-compliance occurred in Montauk.
It also explains why some sort of coastwide standard is
badly needed, so that all states are compelled to adopt minimum standards for
vessel operators and crew.
That being the case, we can only hope that the members of
the Mid-Atlantic Fishery Management Council, as well as the commissioners at
ASMFC, take action to establish such standards, and so help to reduce illegal
harvest in the for-hire fleet.
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