A Painted Flag Does Not Fly

Yes, that's apparently the law.

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.