Heeding complaints from boaters and the boating industry, Michigan and Ohio recently passed laws forbidding state and local marine police from randomly boarding recreational vessels. The Arkansas Supreme Court actually ruled that such boardings violate Fourth Amendment prohibitions against unreasonable search and seizure. None of this affects the U.S. Coast Guard, however, because of a 1983 U.S. Supreme Court ruling that Coast Guard officers do not need “probable cause” to get on your boat.
The practice continues to raise boater’s hackles, particularly on the lower Hudson River, the Chicago area and, of course, Florida.
I am a retired Coast Guard boarding officer and have conducted more than a thousand boardings. But I’m also a boater who has been boarded by various agencies. My mission here is to clarify, educate and entertain a variety of thoughts about the boarding process and the angst it can entail.
My first thoughts turn to the lower Hudson River. There, local and state agencies and the Coast Guard were conducting boardings without any means of sharing with one another the information about whom had been boarded and when and what the results were. Local congressmen became involved, and it has fallen on the Coast Guard’s sector commander to put some kind of protocol in place to prevent, for example, the same boat from being boarded multiple times in a single outing.
Can this type of inter-agency communication be refined, especially with regard to private vessels? Absolutely. I should point out, however, that this controversy was mostly the result of the behavior of local police, not the Coast Guard. However, this distinction was probably lost on the boaters who did happen to be boarded by the Coast Guard after having run the gauntlet of local police checks.
As I said at the outset, boater backlash has caused authorities to outlaw random boardings by state and local authorities in some places, and it has also caused agencies elsewhere to curtail these activities, with the exception of “high vessel traffic events.”
At this point I should note that when you have two adjacent states sharing a body of water, that body of water falls under federal jurisdiction. Examples of this would be Lake Champlain and Lake Tahoe. This federal jurisdiction does not preclude state and local agencies from conducting their own enforcement of boating safety, environmental compliance and clean-water laws. So depending where you are boating, local authorities may randomly board your boat, or they may not; they may need probable cause. This is a distinction worth knowing as you cruise from one state to another.
With a marine patrol boat alongside, most of us probably would consent to the boarding. But in those probable-cause states, you have the right to say no until a search warrant is obtained. However, this can be a sticky situation. I am no scholar of the Fourth Amendment, but I don’t advise exercising that right just for the sake of flapping your sea-lawyer wings at the powers that be.
Any law enforcement agency within its own jurisdiction can board a boat when faced with “exigent circumstances,” such as someone clearly operating a vessel to endanger, boating under the influence, displaying gross negligence, and so on. Probable cause exists in these circumstances even without a warrant.
On the federal side of law enforcement proceedings, (let’s stick with Coast Guard and no other federal enforcement agency) the Coast Guard needs no probable cause to board. Those very words make the hair stand up on many a mariner’s neck and make the sea-lawyer come out from within. Also, for the purposes of this article, I am referring only to recreational craft; U.S.-flagged commercial vessels fall into a whole different bucket of regulatory measures.
Why can the Coast Guard board boats at random? It’s because my old outfit has been charged with enforcing boating safety standards in construction, stability and all federally required safety equipment.
Having been boarded many times (while on active duty and post career), I’ll admit that I found it to be sometimes inconvenient and intrusive. However, there’s the totality of the situation to consider in connection with just about every boarding. Where was the vessel? Where had it come from? Where was it going? Were there any other mitigating factors?
When I was boarded as a private mariner, I would never tip my hand that I had been a boarding officer. For the most part, I found these events to be fairly painless, and I expect they would be for a vast majority of experienced mariners. Intrusive maybe. Inconvenient at times, yes. I’ll readily admit it.
On the whole they were professionally conducted, but there are always exceptions. Have I had black, steel-toe tactical boots leaving marks on on a pristine deck? Yes. Have I witnessed boarding officers woefully untrained, or not knowing how to conduct a boarding? Yes. What I am trying to convey is that I’ve seen many instances and heard many stories of the boarding officer or team bouncing all over a boat with no tact, or displaying an open and apparent lack of understanding of the mariner’s situation.
Many Coast Guard boarding officers do not come from boating backgrounds, and until they joined the service, some had never witnessed a body of water larger than an inland lake. There’s no requirement for boarding officers to bemaster mariners, or even possess a good understanding of what type of vessels they are likely to encounter in their given area of operation.
That is not to say that a boarding officer has not had extensive on-the-job training and supervision to become qualified. His or her performance is reviewed annually—as was mine—to determine whether they should remain qualified as a boarding officer, as well as whenever they are transferred to a new unit.
Later in my career, my job was to train the trainers in matters of maritime law enforcement, personnel and procedures. I took this as an opportunity to add to the training regimen. I wanted to see that the senior boarding officer in the district educated the candidates about the type of vessels they would encounter and what these vessels would be doing. This would inform young boarding officers about the vagaries of the local boating scene.
I’m sure every reader knows or has heard of someone who has purchased a vessel but has absolutely zero knowledge of boats, the skills required to safely operate or navigate. All they needed was the money to buy and outfit the boat, register it and buy insurance (or not). Maybe they even got a decal from the local Coast Guard Auxiliary. Lo and behold they are now amongst us!
Scary as that is, that’s the reality that a boarding officer faces. Picture yourself as a boarding officer during a busy holiday weekend. Your task is to have a presence on the water, and being there just in case your services are needed. Imagine you are closing on a vessel, not necessarily to board but just to ask that the people show their life jackets.
Now the vessel you are approaching appears to not understand your intent, and the operator appears scared and unsure of what to do. A good boarding officer, assessing the totality of the situation, might decide to quit closing on the vessel, hail and give instruction, or stand off and wait to select a better location. A good boarding officer might just opt not to push the issue.
Unfortunately not all boarding officers have this kind of wisdom, and that’s how it comes to pass that online forums are full of stories from disgruntled recreational boaters.
Now let’s take a very well seasoned sailor, with decades of experience and a high awareness of the requirements for his vessel. He’s coming into a narrow inlet in fading light, bucking the tide, to avoid pending adverse weather conditions. Suddenly he’s approached by blue lights and ordered to heave to. I know the very thoughts that cross that mariner’s mind. “Seriously? Now?” Sadly, this has happened, many times to many professional and well-versed mariners, and I can’t explain the rhyme or reason to it. The point is that the officers should have used better judgment and postponed boarding until more favorable conditions, or until after the vessel is moored.
Every boarding scenario is a two-way situation. It is an intersection of the experience of the vessel operator and the experience and training of the boarding officer. If you as the skipper are not comfortable accommodating a boarding party, please say so politely. Not many experienced mariners do. I know of no boarding officer that would not heed the request in the absence of a very good reason not to.
During one recent delivery, I was approaching a narrowing channel and saw a Coast Guard vessel headed toward me. I was focusing my attention to shoaling reports and location, not to the presence of any enforcement activities pending.
Sure enough, I was hailed. We shifted frequencies, and I heard the pre-boarding questions I so often asked myself. I respectfully gave the vessel’s name, and documentation number and last port. As I got my reply read back to me, I realized they intended to ask more in-depth questions and would likely board, so I responded that I was up against the tide times for transit of this location, that I was concerned with the shoaling reports and my position relative to those points, and that I’d be happy to have them come aboard later as we progressed at a slow bell.
The response (from what I could tell was a well-trained boarding officer) was, “Captain, I completely understand. Safe travels, and if we need to revisit, we will.” They had the basic particulars of the vessel, and they could run that into a database, and if a red flag appeared, they could return, or we’d be boarded later in our transit.
NO SHARED DATABASE
Back to the Hudson River. A large part of that problem was due to the inability of municipal agencies to share vessel data. The Coast Guard can usually upload boarding data to be shared within the agency pretty quickly, but there’s this black hole of information sharing between municipal agencies and the Coast Guard. Locals can obtain information from the Coast Guard on an individual basis but there is no shared database.
A shared database might be the answer in theory, but establishing and operating a shared nationwide database for the sole purposes of maritime enforcement is costly and comes with questions about who maintains the systems. The usual answer in these discussions is the Coast Guard, perennially underfunded and constantly tasked with ways to do more with less. I can say with almost absolute certainty that during its next budget review, there would be cuts to the operating budget, and the system would ultimately fail.
The Coast Guard’s right to board recreational vessels without probable cause is unquestionable, but my editor at PassageMaker asked whether I believed that random boardings are worth the effort. Does the policy significantly deter crime and enhance safety or would we be just as well off if the Coast Guard boarded vessels only if they saw cause to do so?
As to crime, my initial response is no, curtailing or ending random boardings would not result in more lawlessness on the waterways. Based on my experience, rarely were criminal activities discovered during random boardings, and often these had nothing to do with the vessels, just active warrants for members of the crew. However, if we include boating while intoxicated, then yes, there is merit in maintaining the Coast Guard’s random boarding policy.
I also believe the random boardings have merit regarding safety. As mentioned earlier, there are many boaters with absolutely zero seafaring knowledge that purchase a vessel, jump behind the helm and go. We see them all too often, and they are often putting others at risk. Random boardings identify safety deficiencies and can detect a search-and-rescue-case-waiting-to-happen, as we used to say when we’d come upon a hapless boater.
There is one piece of advice I’d like to address to everyone, and it regards the words that should also come from the boarding officer’s mouth to your ears before they disembark your vessel:
“On the bottom of the boarding report is my name and the phone number of my unit, where you can speak with my superiors. Or on the back of the form, there’s an 800-number you can call to make a comment, and someone will return your call.”
For all the boardings I’ve conducted, or been a part of, I can count on one hand the number of times I’ve had feedback. If being boarded has been egregious—if it makes you want to tell your friends and post it on the Internet—then please make your opinions known in a forum where they can make a difference. Feedback to the agency that conducted the boarding can go a very long way towards fostering better practices all around.
Pete Dautel is a decorated Coast Guard officer, who retired in 2006 with the rank of chief boatswain’s mate. He joined the Coast Guard in 1982 and served aboard cutters and patrol boats, including several years as part of a specialized tactical law enforcement team working in the Northern Arabian Gulf, Bosnia, and counter-narcotics missions in Central and South American waters and other special mission operations. He now consults with NOAA, works as a mariner surveyor and delivery captain. He and his daughter Alyson can be found exploring the waters around Cape Cod and the islands.