Assertion of Jurisdiction by the United States Over Foreign

Vessels Seized Pursuant to a Special Arrangement

T h e U nited States m ay stru ctu re a Special A rrangem ent so as to enable it to assert 

jurisdiction o v er a vessel seized on b eh alf o f a foreign state, on ce the foreign state 

w aives its jurisdiction.

O nce the U nited States asserts ju risd ictio n o v er a seized vessel, it m ust com ply w ith the 

requirem ents o f the F o u rth A m endm ent.

April 15, 1980

MEMORANDUM OPINION FOR THE DEPUTY ASSISTANT 

ATTORNEY GENERAL, CRIMINAL DIVISION

This responds to your inquiry whether the United States could assert 

jurisdiction over foreign vessels seized pursuant to a Special Arrangement if the flag state decided not to prosecute the vessel after the 

United States had seized the boat on behalf of the flag state. We believe 

that the Special Arrangement may be stuctured so that the United 

States can assert jurisdiction when the flag state refuses to prosecute. 

Once the flag state declines to continue to exercise its jurisdiction, the 

United States can assert jurisdiction, obtain a warrant to search and 

seize the vessel, and institute forfeiture proceedings.

As we noted in our memorandum to the Deputy Legal Adviser of 

February 19, 1980* on this general subject, the President is relatively 

free to negotiate the details of a jurisdictional agreement with a foreign 

state. Williams v. Rogers, 449 F.2d 513, 522-523 (8th Cir. 1971), cert,

denied, 405 U.S. 926 (1972). Jurisdiction under these agreements may be 

exclusive, concurrent, or a matter of one party having primary jurisdiction which it may then choose to waive. Holmes v. Laird, 459 F.2d 

1211, 1212, 1214 (D.C. Cir. 1972) (jurisdiction reasserted after initial 

waiver); Art. VII(3)(c), Agreement Between the Parties to the North 

Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 4 

U.S.T. 1792, T.I.A.S. No. 2846 (NATO SOFA); Art. XVII, Administrative Agreement Under Article III of the Security Treaty Between 

the United States of America and Japan, Feb. 28, 1952, 3 U.S.T. 3342, 

T.I.A.S. No. 2492 (Administrative Agreement). For example, under the 

Administrative Agreement with Japan, the United States had “exclusive

•N o t e: The text of the February 19, 1980 memorandum appears in this volume at p. 406. Ed.

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jurisdiction over all offenses” committed by its soldiers and civilians in 

Japan. Art. XVII, § 2. However, the United States could waive its 

jurisdiction at the request of the Japanese government. Id., § 4. “Upon 

such waiver, Japan may exercise its own jurisdiction.” Id. Not until the 

United States waived its jurisdiction, however, could Japan assert its 

own jurisdiction.

Similarly, we believe that the United States could enter into an 

agreement that would preclude assertion of its jurisdiction until the flag 

state waived its jurisdiction. The agreement could be a two-tier arrangement: first, there would be an initial seizure on behalf of the flag 

state. While the United States held the ship in custody for the flag state, 

the Special Arrangement would permit only the flag state to assert 

jurisdiction. However, if the flag state decided that it did not wish to 

proceed against the ship, it could decline to continue its jurisdiction. 

We would recommend that the Special Arrangement include a specific 

time limit for this period to reduce the likelihood that the ship remains 

unprocessed for any length of time.

The flag state’s primary jurisdiction must be made clear. The Special 

Arrangement is premised on the flag state’s underlying jurisdiction 

when the United States seizes the ship. The Special Arrangement 

should state that we would normally expect the flag state to continue to 

exercise that jurisdiction by assuming custody promptly. However, in 

order to permit flexibility, the Special Arrangement could include a 

second tier: assertion of jurisdiction by the United States when—and 

only when—the flag state renounces its jurisdiction.1 It should be made 

clear that the United States does not exercise concurrent jurisdiction 

under the Special Arrangement. Only when the flag state refuses to 

exercise its criminal jurisdiction any longer may the United States 

exercise its own.

The Special Arrangement should state the precise method by which 

the United States will inform the flag state and third parties that it is 

asserting jurisdiction. Although such detail may not be necessary, see

Administrative Agreement, supra, the danger that a forfeiture proceeding will be dismissed because of improper notice or delay, especially 

given the courts’ willingness to read the statutes narrowly in order to 

protect innocent owners, is reason enough to use special caution in 

drafting this Special Arrangement.2

When the United States does assert jurisdiction, it should make sure 

that the formal seizure of the ship is done without violating the Fourth 

Amendment. Evidence which is obtained in violation of the Fourth

1 T he Special A rrangem ent should be drafted to ensure that there is no gap between the renunciation o f jurisdiction by the flag state and its assertion by the United States. See 33 C .F.R . § 604-8 

(1979).

2 In addition, the m ore precise the Special Arrangem ent is, the easier it will be to convince a court 

that the Executive has considered all the “details” for which it is responsible—including when United 

States courts should be allowed to review the proceedings.

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Amendment may not be relied on to sustain a forfeiture. One 1958

Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).3 Some courts 

have permitted a warrantlesis seizure when there is probable cause to 

believe the object is subject to forfeiture. See United States v. Pappas,

600 F.2d 300 (1st Cir. 1979); United States v. Sink, 586 F.2d 1041, 1048 

(5th Cir. 1978); cert, denied, 443 U.S. 912 (1979). However, other courts 

require exigent circumstances. United States v. McCormick, 502 F.2d 

281 (9th Cir. 1974). This might be hard to show if the ship is in the 

custody of the United States and its crew has been arrested or removed. Although several courts have held that forfeiture statutes do 

permit summary seizure, the Fifth Circuit is still “determining] the 

scope” of the forfeiture laws. Sink, supra, 586 F.2d at 1048 (5th Cir. 

1978).4 We would recommend that a warrant be obtained for the 

search and seizure.

The United States may take advantage of a seizure made by anyone 

on its behalf by adopting the act and proceeding to enforce the forfeiture by legal process. The Caledonian, 17 U.S. (4 Wheat.) 100, 103 

(1819). United States v. Story, 294 F. 517 (5th Cir. 1923). However, here 

the original seizure, even though made by a United States officer, will 

be on behalf of a foreign nation.5 Although seizures by citizens on 

behalf of a state government may be adopted by the federal government, In re Commercial Investment Trust Corp., 31 F.2d 494 (W.D. N.Y. 

1929); United States v. One Studebaker Seven-Passenger Sedan, 4 F.2d 

534 (9th Cir. 1925); United States v. Story, supra, a court might decide 

that this line of cases is distinguishable. Such adoption might also raise 

questions as to whether the original seizure was purely on behalf of the 

flag state—which might lead to renewed questions about whether there 

was concurrent jurisdiction over the ship.6

We recommend that the United States obtain a warrant to seize the 

ship, using the testimony of the officer who makes the original seizure 

to establish probable cause.7 If this is done as promptly as possible after

3 T he forfeiture may still proceed, how ever, if it can be proven by untainted evidence. United States

v. One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351 (9th Cir. 1974); United States v. One 1976

Cadillac Seville, Vin, A ll F. Supp. 879 (E.D . M ich. 1979); Mayo v. United States, 413 F. Supp. 160, 162 

(E.D . 111. 1976).

4 T he First Circuit, w hich includes the port o f Boston w ithin its jurisdiction, has issued conflicting 

signals on the question w hether an unauthorized seizure bars a subsequent forfeiture. A fter stating that 

the illegality of the underlying seizure is irrelevant, Interbartolo v. United States, 303 F.2d 34 (1st Cir. 

1962), reaffirming Strong v. United States, 46 F.2d 257 (1st Cir. 1931), it questioned, without deciding, 

w hether Interbartolo was still good law. United States v. One 1972 Chevrolet Nova, 560 F.2d 464 (1st 

Cir. 1977); Berkowitz v. United States, 340 F.2d 168 (1st Cir. 1965). T hen in United States v. Pappas, 600 

F.2d 300 (1st Cir. 1979), the C ourt limited Berkowitz T he district courts reflect that confusion. 

C om pare United States v. One 1975 Pontiac LeMans, 470 F. Supp. 1243, 1247 (D. Mass. 1979) (citing 

Interbartolo), and United States v. F /V Taiyo Maru, 395 F. Supp. 413 (D . Maine 1975), with Melendez

v. Shultz, 356 F. Supp. 1205 (D. Mass. 1973).

s W e note that the arresting officer should be aw are that his original seizure may be the basis of 

later action by the United States and therefore the subject o f scrutiny by Am erican courts.

6 W e would also recom m end that the Special Arrangem ent specifically state that the flag state 

cannot reassert its jurisdiction at a later date.

7 A ny drugs w hich are no longer on board should also be seized on behalf o f the United States.

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the flag state renounces jurisdiction, it should foreclose an argument 

that the seizure of the ship was improper.

L a r r y L. S im m s

Deputy Assistant Attorney General

Office of Legal Counsel

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