stitutional Law, section 580. The Supreme Court has held that the due process clause of the fifth amendment requires that "criminal statutes *** give due notice that an act has been made criminal before it is done (Jordan v. DeGorge, 341 U.S. 223, 230, 71 S. Ct. 707, 95 L. Ed 886). The statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of the due process of law (Connally v. The General Construction Company, 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322). In attempting to find a definition of crime which comports with standards of due process under the fifth amendment, we look upon the entire text of the statute and the subject matter it deals with. With respect to the provisions concerning the Continental Shelf, the statute makes it unlawful for any vessel except a vessel of the United States or for any master or other person in charge of such vessel * ** "to engage in the taking of any Continental Shelf fishery resource which appertains to the United States except as provided by international agreement to which the United States is a party." The term "Continental Shelf fishery resource" is not a word of art used in the fishing industry to indicate any individual specie or grouping of species of fish to which the prohibition of "taking" can be applied. Therefore, the statute without more on its face does not establish an adequate standard and we attempt to judge the intent of Congress from the legislative history. Senate Report 500 at page 3 states that "it has not been settled which seabed resources belong to the United States under the Convention on the Continental Shelf and other applicable law and which do not. The committee does not wish to prejudge the question but it seems to the committee that oysters, clams and certain crabs would be included." In a debate on S. 1988 in the Senate, Senator Bartlett, the sponsor of the legislation, and the floor manager for the legislation, states that the basic purpose of the bill is to provide for the enforcement of our territorial waters and the U.S. claim to the resources of the Continental Shelf which as yet have not been determined. Further, the Senator admits that under the Outer Continental Act, the United States has never specifically or formally named the resources which appertain to the United States. In addition, he states that this legislation (S. 1988) does not attempt to identify these exact claims either, but it does provide for the immediate enforcement of these claims when clarified. In analyzing the legislative history, it would seem to be a fair statement that the sponsors of the bill almost refuse to define which of the numerous types and classifications of seabed resources belong to the United States and are the object of the prohibited taking for which such severe sanctions are assessed. The Senate Report 500 seems to admit that it is not settled which seabed resources are the subject of valid claims by the United States. Since one assumes that these species must be claimed validly under international law, one could assume that shrimp, crab, lobster, and finny fish at least are not the subject of valid U.S. claims. But there is no assurance of even this and fishing by nationals of other states in the waters of the high seas of the Continental Shelf of the United States is substantial in terms of products derived and in terms of capital investment. In the final analysis, men of common intelligence must necessarily guess at the meaning and differ as to the application of this legislation. It is our conclusion that under applicable U.S. law, the statute is probably void for vagueness on its face and if enacted, would probably raise serious questions in the light of the due process clause of the fifth amendment. Since the fifth amendment states that "no person shall be deprived of life, liberty, or property without due process of law," the courts have held that friendly aliens within the jurisdiction of the United States are entitled to the protection of the fifth amendment to the Constitution (Wong Wing v. the United States, 163 U.S. 228 at 238, 41 L. Ed. 140 at pp. 144, 145 (1895); and see dicta, Johnson v. Eisentrager, 339 U.S. 763, 94 L. Ed. 1255 at 1266 (1949)). It is submitted that Japanese king crab fishermen fishing for king crab in the high seas waters north of the Alaskan Peninsula arrested and charged with illegal taking of "Continental Shelf fisheries resources" when brought before a U.S. court could avail themselves of the fifth amendment to the Constitution of the United States. In our opinion, the measure as it presently stands, probably would be declared to involve a denial of due process of the law. CONCLUSION In the light of the foregoing, it is urged that the provisions of S. 1988 specifically as they relate to the taking of any Continental Shelf fishing resource which appertains to the United States be reconsidered if it is intended to include within such "fishing resource" the king crab or to exclude nonnational fishermen from areas where they have preexisting fishing interests. Hon. HERBERT C. BONNER, NATIONAL SHRIMP CONGRESS, INC., Key West, Fla., February 14, 1964. Chairman, Merchant Marine and Fisheries Committee, DEAR MR. BONNER: It is noted that hearings have been set to consider S. 1988 and similar bills which are now before your committee. The National Shrimp Congress which is composed of directors from the regional associations in the Southern States is vitally concerned with this legislation as it affects the domestic shrimp industry. I therefore enclose a statement which outlines the effect that this type of legislation has upon the shrimp industry and urge that the committee consider these matters carefully before reaching its final decision. Very respectfully yours, WILLIAM R. NEBLETT, STATEMENT OF THE NATIONAL SHRIMP CONGRESS ON S. 1988, PROTECTIVE LEGISLATION AND THE U.S. SHRIMP INDUSTRY The most amazing and rapid change in national policy in the history of the U.S. fishing industry is exemplified in S. 1988 on which hearings were held on September 5 and 6, 1963, before Senator Bartlett's subcommittee. Witnesses for the Departments of State, Interior, Navy, and Coast Guard (Treasury) blessed and approved the objectives of the bill, "to prohibit foreign fishing in U.S. territorial waters and in certain other areas." The Northwest and Northeast cried for protection. One lonesome voice from the tuna fishery evidenced some alarm over stringent provisions in the bill authorizing the imprisonment of offending foreign crews. Tuna had not forgotten that their distant fishing vessels and crewmen were subjected to seizures in the Southeast Pacific, and thought that the bill should be tempered somewhat, perhaps to avoid retaliation. The nations which are at odds with the U.S. tuna fleet do not fish in U.S. waters. Sanctions intended primarily for the Soviets and the Japanese will not resolve the problem of the tuna fleet. The only sanction which will help the U.S. tuna fisherman is the economic one, such as proposed by Congressman Van Deerlin (H.R. 6656) and Senator Engle (S. 1651) which would authorize the President to impose an embargo on any fish or fish products from countries which harass U.S. fishermen on the high seas. There is also Congressman Pelly's bill (H.R. 7815) and others of similar scope. The domestic shrimp industry can join other U.S. fisheries in approving the basic intent of S. 1988. Federal protection is greatly needed. The undersigned, on behalf of the shrimp industry, proposed and helped to pass protective legislation (H.B. No. 942) in the recent session of the Florida Legislature, but the capacity of individual States to deal with this matter is severely limited. (See attachment "A.") U.S. BECOMING COASTAL STATE As we now rapidly join the "coastal States" in sudden and rabid protectionist measures, the voice of the shrimp industry must be raised and heard to point out certain dangers inherent in this period of transition-not to oppose the overwhelming trend, but to caution the lawmakers not to destroy by inadvertence the only distant-fishing fleets proudly carrying the U.S. flag-tuna and shrimp. THE SHRIMP FISHERY Shrimp is and has been for 12 years the No. 1 U.S. fishery in dollar value. The investment in the fleet, the number of persons deriving livelihood and the value to the U.S. economy from shrimp fishing is important. While no State is as dependent upon fishing as is Alaska, there are entire sections and communities of the South Atlantic and Gulf States which rely heavily on the shrimp industry. Every coastal Southern Senator and Congressman is aware of these conditions in his home State. The "domestic" shrimp fleet is composed of nearly 7,000 vessels and boats. In this complex which comprises "domestic" production, the catch made by U.S.-flag vessels is roughly divided as follows: (a) Local and coastwise trawlers which fish only close to United States, accounting for approximately 80.3 percent of the catch. (b) Distant-fishing trawlers (2 to 6 weeks at sea) based in U.S. ports but fishing the western Gulf of Mexico, which account for approximately 15.5 percent of the catch. (c) U.S.-flag trawlers based in British, French, and Dutch Guiana, which account for approximately 4.2 percent of the catch. The Bureau of Commercial Fisheries reports for the year 1962 disclose the following: The fishery in the Guianas is expanding. During the period January-July 1963, French Guiana production was 549,000 pounds. Total Guiana production for 7 months was 4,799,000. Item (b) "Distant fishing" at times has accounted for as much as 27 percent of the U.S.-flag catch in years when U.S. coast production faltered. Any reduction of shrimp fishing in areas (b) and (c) inevitably results in an impossible concentration of too many U.S.-flag vessels on the home grounds, resulting in complete economic disaster. While the shrimp fishery is not regulated by international treaties to maintain the proper exploitation of available stock (such as halibut and salmon) it has achieved an almost perfect position in that available stocks are being fully taken to insure the "maximum sustainable yield" consistent with true conser vation of the resources. As an annual crop, there is a new yield each year. If our distant-fishing fleets cannot continue abroad, their return and concentration on local stocks would have dire conservation effects, as well as economic disaster. It is the larger, more efficient, bigger-net vessels which go abroad. S. 1988 AND SHRIMP The critique on any legislation made by the shrimp industry must be based on the foregoing essential elements. Protection can help the shrimp industry. Overprotection can kill it, we believe. None of the 50 or more countries which export shrimp to the United States trawl for shrimp near the U.S. territorial sea. Of these exporters, only one nation, Japan, is in any way likely to be affected by S. 1988. RELATIONS WITH MEXICO Mexico has shown great forbearance and a sophisticated approach to the problems of shrimp fishing in the western gulf. U.S. fishermen, in turn, by gentlemen's agreement, have endeavored to stay beyond the 9-nautical-mile limit asserted by Mexico, and the trawlers of these two nations fish side by side or nearby in peace and amity while the shrimp industries of these two nations combine through the Shrimp Association of the Americas jointly to develop the industry and the market and to sponsor good conservation procedures. The shrimp industry sees no danger in the application of protective measures by the Federal Government in U.S. waters. Mexico has similar laws and protects its fisheries wisely. FINE AND FORFEITS (SEC. 2(A)) The economic loss to a vessel owner of losing his catch, nets, and paying fines and being subject to delays is nominally sufficient to make it unprofitable and unwise to trespass in the territorial sea of another nation. Fines assessed against the vessel are a more satisfactory procedure than fines assessed against the crew, because the value of the vessel assures payment of the fines, else the hull forfeits. Fishermen generally go to sea for a proportion of the catch, and none get rich by it. It is likely that some owners of vessels (whether private or Government) would allow the imprisoned crew to rot in jail rather than ransom them, usually on the premise that the owner instructed the master and crew to stay out of trouble, and that the seizure is the master's (or crew's) fault. THE TERRITORIAL SEA Neither of the U.N. Geneva Conventions on Law of the Sea in 1958 or in 1960 resolved the width of the territorial sea. The writer was present at both. Under international law no unilateral declaration of one nation is binding on any other nation which wishes to reject it. These laws are made by agreement or consent. It is true that in the uncertain area of the width of the territorial sea there are various claims by various nations. Within reasonable limits there is a general tacit understanding and some respect. If the Soviets are willing to fight to preserve their claim of 12 miles it is not likely that we will invoke nuclear power to dispute it. The unreasonable claims of Peru, Ecuador, and Chile to 200 miles in the South Pacific are not seriously taken by the family of nations, least of all by the U.S. Government. As leaders of the free world and paragons of law and order, any unreasonable unilateral action taken by the United States will only lend substance to the unrealistic claims of other countries. Further, although the Department of Defense will endorse a reasonable protection of U.S. fishermen, it will rise in alarm and wrath at any suggestion of enlarging the territorial sea, as we fishermen well know. THE CONTINENTAL SHELF There is absolute danger to the shrimp industry in any interpretation of the Continental Shelf which does not completely comply with the Convention on the Continental Shelf as adopted in Geneva in 1958, and which has been ratified by 21 nations and the 22d signatory is imminent to bring it into full force as to the contracting parties. There were some glib references to this matter in the testimony before this committee, and the shrimp industry respectfully suggests that the full text of the Convention be examined thoroughly and included in the record. For clarification and emphasis, article I of the Convention states its limits to be "outside the territorial sea, to a depth of 200 meters, or beyond that limit to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas * * *." The reason the Conference did not stop at a given depth was because modern techniques are expanding to where it might be feasible to drill for oil at 2,000 fathoms. "Natural resources" is not confined to oil and minerals-but also living organisms, as very specifically defined in article 2: "organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil." This quoted section is life or death to the shrimp industry. Shrimp are exempt from this careful definition, and purposely so. Emphasis is also placed on the following part of article 2(4) of the Conven tion: "The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the Continental Shelf or exploit its natural resources, no one (else) may undertake these activities ***. Any unreasonable interpretation of the doctrine of the Continental Shelf could well be fallacious and injurious, for example: (1) Claiming an area and being physically unable to police it or patrol it. This is now true of the 200-mile territorial sea claim in the Southeast Pacific. (2) Claiming an area (or a resource) and then not fully exploiting the resources in it. Certain sea products cannot be sold in our markets. Certain sea products cannot economically be harvested and since we depend on private capital, they would lie fallow and unused. (3) The world is hungry for protein, and the United States cannot be placed in the position of denying unused and unneeded sea resources which it does not propose to harvest. The great difficulty in regulating fish is that the fish do not recognize latitude and longitude, nor do they care about the width of the territorial sea. In a perfect world we would have good biological information on each stock of fish, spawning, migration, mortality. Wise laws would be based upon conservation, and would vary as to species and stocks. The shrimp fishing industry's control of local stocks, from State to State, attempts to base management and conservation on the particular stocks in particular areas, and intense biological work, as well as exploitation, indicates that we have reasonably good conservation practices which should assure good annual yields forever. They could not withstand the overfishing which must result if we lost our distant fishing grounds. There is attached a reduced photocopy of Coast and Geodetic Survey Chart No. 1009, Gulf of Mexico.1 Modern shrimp trawlers go where the shrimp may be found, and the bulk of the catch is from 10 fathoms outward to 40 or 50. No concentrations of shrimp in deep water (Royal Reds) have been discovered sufficient to be economically harvested, a process which requires large vessels, heavier cables, larger winches, and considerable other expenses. The lifeblood is in that 10-50 fathoms offshore and usually ideal trawling is in the 15-30 fathom range. In the western gulf there is a good fishing ground in this area, which commences about 9 miles off the coast, although there is much good fishing ground also inside 9 miles. U.S. shrimp fishermen by the thousands earn their living here and make a valuable contribution to the national economy. Both the United States and Mexico have fully developed shrimp fishing fleets and they jointly use much of the grounds. Mexico is also the largest exporter of shrimp to the U.S. shrimp market, which, like most domestic fisheries, requires some imports to meet consumer demands. CONCLUSION (a) The needs and requirements of the several U.S. fisheries vary, but they have common ground and can survive only by concert and agreement. In devising measures which strengthen or protect one fishery, they should not coincidentally destroy another. (b) The basic effort to protect domestic fisheries against foreign encroachment, as in S. 1988, deserves the support of all segments of the domestic fishing industry. (c) No unilateral extension of the territorial sea is proper under international law, and is contrary to the defense interests of the United States. (d) A moderate extension of the fishing zone to protect specific stocks or species of fish historically or customarily fished by U.S. fishing vessels, and essential to the domestic market, is a reasonable exercise of the power of local government when based upon sound scientific premise and when kept within those limits favored by a majority of nations at the U.S. Conference on Law of the Sea, Geneva, 1960, limited to 12 miles from shore. (e) Legislation should not connect the Continental Shelf doctrine to fisheries, unless it is to reaffirm the criteria expressed in the Convention on the Continental Shelf, the United States being a signatory to this Convention. [Attachment A] CHAPTER 63-202 HOUSE BILL NO. 942 AN ACT relating to territorial waters of the state of Florida; prohibiting the licensing of certain alien-owned commercial fishing vessels; making certain operations unlawful when conducted by such vessels in Florida waters; providing for enforcement by harbor masters, sheriffs, agents of the department of conservation and others; providing penalties and effective date. WHEREAS, it is the sense of the legislature to protect the vital State resources contained within the territorial waters of Florida in order to conserve 1 The chart was placed in the committee files. |