A Painted Flag Does Not Fly

Yes, that's apparently the law.

|The Volokh Conspiracy |

From today's Eleventh Circuit decision in U.S. v. Obando:

This appeal requires us to decide whether a flag painted on the side of a vessel is "flying" for the purpose of making a "claim of nationality or registry" under the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70502(e). When the United States Coast Guard stopped the vessel Siempre Malgarita in international waters on suspicion of drug trafficking, [defendants] were aboard the vessel, but they failed to produce documents evidencing nationality or to make a verbal claim of nationality or registry.

Coast guardsmen spotted a Colombian flag painted on the hull of the Siempra Malgarita, but the master of the vessel asserted that the flag was Ecuadorian. [The two flags are identical except that the Ecuadorian flag has a coat of arms in the center.] The guardsmen did not ask Colombian officials whether the vessel was registered in Colombia or whether Colombia consented to the Coast Guard exercising jurisdiction. Guardsmen later boarded the vessel and arrested the crew members.

In the district court, the crew members argued that the United States lacked jurisdiction because the painted Colombian flag constituted a claim of nationality under section 70502(e)(2) that obliged the Coast Guard to ask Colombian officials about the vessel. After the district court ruled that the vessel was stateless and subject to the jurisdiction of the United States, the crew members conditionally pleaded guilty. Because a painted flag does not fly, we affirm….

The Maritime Drug Law Enforcement Act grants the United States extraterritorial jurisdiction over "vessel[s] without nationality." Act states that a vessel is without nationality if "the master or individual in charge fails, on request of an officer of the United States …, to make a claim of nationality or registry for that vessel." And the Act provides three exclusive methods for the master or individual in charge to make a "claim":

(1) possession on board the vessel and production of documents evidencing the vessel's nationality as provided in article 5 of the 1958 Convention on the High Seas;

(2) flying its nation's ensign or flag; or

(3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.

If the master of a vessel in international waters makes a claim of foreign nationality that is affirmed by the asserted nation, the United States ordinarily must obtain "consent[]" from that nation before exercising jurisdiction….

The ordinary meaning of the word "flying" requires a flag to be capable of freely moving in the air. For example, Webster's New International Dictionary defines "fly" as "[t]o cause to fly or to float in the air as a … flag," and it offers the illustrative phrase of "the ship flew the flag of Spain." [Other dictionary definitions omitted. -EV]

To be sure, the ordinary meaning of a term will yield when the term has "a technical meaning" or is a "term[] of art," but the meaning that the phrase "flying a flag" carries in the maritime context confirms that a vessel's flag must be able to move freely in the air. For example, the Oxford English Dictionary, in a section on "nautical phrases," defines "to keep the flag flying" as "to refuse to haul down one's flag and surrender." [More evidence of maritime custom, and of similar usage of "flying a flag" in other contexts, omitted. -EV]

To be sure, the only other decision to address this question assumed, for the sake of argument, the opposite conclusion. In United States v. Prado, 143 F. Supp. 3d 94 (S.D.N.Y. 2015), the Southern District of New York ruled that a "small emblem of what appear[ed] to be an Ecuadorian flag … affixed to [a] boat[]" was not "flying … within the meaning of the [Act]." The district court declined to adopt the argument of the government "that a piece of fabric must wave in the air." Instead, it explained that the phrase "'flying a nation's ensign or flag' … at a minimum refer[s] to a display sufficiently prominent as to put a United States official on notice of another country's interests" before it concluded that the particular emblem in question was "not remotely large or prominent enough."

Not only was this functionalist analysis unnecessary in the light of the ordinary meaning of the phrase "flying a flag," but the opinion in Prado also highlighted the inherent difficulty of dispensing with the requirement of a hoisted flag when it grappled with the question whether the "emblem" on the vessel in question was "enough to put a reasonable official on notice that [another country's] interests might be affected." The district court began its analysis by "assuming" that the emblem was "an image of an Ecuadorian flag," and it acknowledged that the emblem, "[u]nlike a prominently displayed flag, … [is] easily confused with ornamentation … [and] difficult to see in any waters, not to mention … in the large waves of the high seas." It also underscored that "[t]he emblem [was] very much smaller than … nearby … images running the length of the boat's side," in concluding that this particular emblem was not "enough." In contrast, a flag hoisted in the air avoids these line-drawing problems and provides certainty to both American officials on the high seas and the courts that second-guess their decisions.

The ambiguities posed by painted flags also rebut the crew members' practical complaint that the requirement of a physical flag will "lead to absurd results" because "a postage-stamp size … flag hoisted on a ship's mast could constitute a claim of nationality but a flag several feet long by several feet wide painted on the … hull of a boat could not." Indeed, the Act has good reason to require an actual flag of any size instead of a painted representation. Consider a vessel painted with horizontal red, white, and blue stripes. Is this vessel flying the flag of the Netherlands? Or is it instead owned by a captain who only likes those colors? And as illustrated by Prado, static "emblems" require fact-intensive inquiries into the size, location, and intended meaning of such markings. A flag hoisted in the air avoids these questions and unambiguously asserts nationality….

Thanks to Michael Smith for the pointer.

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  1. Ridiculous decision.

  2. Because?

    Look, I’m not sure the court’s decision is right — but at least they give a good deal of argument in support of it. Care to offer some substantive argument against it?

    1. Because the decision seems to hinge on the fact that it was not “flying” and was “painted,” NOT on the fact that the painting was ambiguous (whether because of its location or its size). You could have an ambiguous looking flag as well if it was flying obscured between other similarly colored objects.The intent of the statute is that anyone seeing it immediately knows where the vessel is registered. No one would be confused if a non-ambiguous flag was painted on the side.

      1. God forgive me for agreeing with RightWing, but…

        If anything, it would seem that a flag that is painted on is even *more* evidence of nationality. It’s easy to raise and lower a flag, which should make it easier to hoist flags from different countries–depending on the situation. But if it’s painted on, then it seems more permanent.

        Now, if the painted flag had any of the hallmarks listed (hard to distinguish from other markings on the hull, a boat/ship that is low enough to the water that a flag could sometimes not be seen, etc), then I’d agree. But on, say, a huge cruise ship that towers 200 feet above the water surface . . . a mammoth flag on *both* side of the hull . . . that seems better than a mere flag a wavin’.

        1. Given piracy, letters of marque, and whatnot are acts of war, you’d think any doubt would fall to keeping international peace and not to having lackies drag the nation into something Congress, by the very nature of the law trying to be careful in this, obviously did not want.

  3. “…but they failed to produce documents evidencing nationality or to make a verbal claim of nationality or registry…”

    If the master of a vessel cannot produce the documents then there is ambiguity as to nationality of said vessel. I wonder if the master had any documents as to his qualifications to be operating said vessel in international waters; similar to one flying an aircraft or driving a car.

    1. You don’t need qualifications to operate a vessel in international waters. Any requirements are only in place in national waters, either yours or someone else’s.

  4. From the decision itself, it’s not unambiguously clear that the painted flag really was a painting of the Colombian flag rather than a painting of the (old) Ecuadoran civil ensign. From 1900 to 2009, the Ecuadoran merchant marine almost always used the (old) civil ensign (the Ecuadoran flag minus the coat of arms).

    So, the defense’s assertion that the Coast Guard should have known it was a Colombian flag is itself questionable. If a ship master who is an Ecuadoran citizen says something that could be a depiction of an (older) Ecuadoran flag is a depiction of an Ecuadoran flag, it would seem unreasonable to expect the Coast Guard to treat it as an assertion of Colombian nationality.

    1. This incidentally can be related back to the Netherlands flag bit, because the Luxembourg flag is also horizontal stripes of red, white, and blue (which is why Luxembourg uses a completely different flag for its civil ensign; vessels flying the Luxembourg civil ensign cannot be mistaken as Dutch).

      (And now I’m imagining a case where a Serbian master of a vessel flies a Russian flag of horizontal white-blue-red upside-down, precisely so that he can reveal after-the-fact that it was not actually the Serbian civil flag of horizontal red-blue-white, so he can’t be prosecuted by the US because the Russians weren’t contacted, and it’s the Coast Guard’s fault for not noticing it was upside-down.)

  5. The Maritime Drug Law Enforcement Act grants the United States extraterritorial jurisdiction over “vessel[s] without nationality.”

    Can other nations similarly assert jurisdiction over “stateless” vessels in international waters? I would expect that, as long as they remain in international waters, “stateless” vessels are not subject to any nation’s jurisdiction.

    1. It is a generally recognized and widely-exercised power of every nation-state. Stateless vessels are in effect outlaws, not under the protection of anybody.

    2. International treaties and maritime history related to dealing piracy and going as far back as the prohibition of the slave trade give warships (which Coast Guard cutters technically are) the authority to stop and question vessels, to include asking what their cargo is and seeing the manifest. The British really paved the way on this.

    3. Can other nations similarly assert jurisdiction over “stateless” vessels in international waters?

      Absolutely. It’s been customary international law for centuries.

      For a state to legally board and exercise jurisdiction over a ship on the high seas, the ship being boarded must meet one of five conditions:

      1) It is of the nationality of the boarding state.
      2) It is engaged in broadcasts to or that interfere with the broadcasts of the boarding state.
      3) It is engaged in piracy.
      4) It is engaged in the slave trade.
      5) It is without nationality.

      Being flagless in international waters doesn’t make you immune from the jurisdiction of states; it makes you subject to any state that wishes to exercise jurisdiction.

    4. Others have already answered well, but think of it the other way — if a vessel is stateless, who is going to defend you if you complain?

  6. I am heartened to learn that the flag that Apollo 11 left on the moon is not “flying”.

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