25 October 2013

Registering Your Boat (Pt 4) - USA & The 4th Ammendement

Back when there were less than 50 stars on the flag, our Founding Fathers put the 4th Amendment in place to protect against unreasonable search and seizure. None of them owned a sailboat. If they had, things might be different.
Did you know that the US Coast Guard has the right to board a US flagged boat at any time, anywhere and without probable cause? I've been looking into options for registering our boat in New Zealand, Ireland and the States and my focus had been on finding something low on cost and low on bureaucracy. It never occurred to me that I should also be thinking about my 4th Amendment rights. And as the 4th happens to be one of my favorite amendments, I've started to pay more attention to the powers that the US Coast Guard has.

I know a number of people who read this aren't Americans, so here is the Cliff Notes version of the 4th Amendment and why it is so important. The 4th Amendment is part of the Bill of Rights, which are the first ten amendments to the US Constitution. The Bill of Rights were intended to guarantee a number of personal freedoms - things like freedom of speech and religion, the right to bear arms, the right to a fair trial etc. The 4th Amendment is all about freedom from unreasonable search and seizure and the "right of the people to be secure in their persons, houses, papers, and effects." If you live on land, the police can't enter and search your house without reasonable cause and a search warrant in their hands. If you're driving down the road, the police can't stop and search your car without reasonable cause. However, if you live on a boat or just sail it on weekends, all bets are off and the US Coast Guard can stop and board your boat at will and without cause. And they can do it whether you're sailing in US territorial waters or just happen to be sailing off the coast of New Zealand. And before you start mumbling about them needing to protect our borders (which might seem like a reasonable argument...or not), bear in mind that they can board your boat if you're sleeping on it in a marina or if you're cruising along an inland lake or river which isn't anywhere near Canada or Mexico.

Crazy, right? How could our Founding Fathers have ever let this one slip through? I found a great article by Clark Beek on Sailfeed which explains the historical origins of this particular breed of craziness. Basically, way back when, there were these boats called "revenue cutters" which were allowed to board vessels to make sure that they had paid tariffs on their cargo. Kind of like the IRS and their power to audit. People didn't live on boats back then, so the whole personal liberty thing wasn't really top of mind. Times have changed, but the original Revenue Cutter Act of 1790 has continued to be upheld. As Clark Beek points out, a number of the challenges have been by drug smugglers and, as they aren't the most sympathetic of characters, the general public hasn't been all that moved. And although there are around 16 million registered boats in the States and 75 million Americans who go boating each year, people probably have other priorities than a grass roots movement to change this act. Although I don't do drugs, I almost refused to take a random drug test many years ago at work because I thought it was an infringement of my 4th Amendment rights. In the end I took the test because I decided I would rather have a job than fight the powers that be. I chose the road of less hassle. So I can see why boaties haven't made challenging the US Coast Guard's powers their focus either. It would be a real hassle.

So what do the US Coast Guard actually do when they board your boat? Although they don't have to tell you why they're boarding your boat, they'll often be checking your documentation, safety gear, making sure you haven't had too much to drink and that you're not dumping stuff in the water that doesn't belong in it (like oil, sewage and fuel). According to Clark Beek, they're also using your boat as a training exercise. It takes some skill to board a boat and the men and the women of the US Coast Guard need to keep in practice. So they sometimes practice on your average boat. You know, the kind which they have absolutely no reason to believe is smuggling drugs or engaged in other illegal activities.

There is a great thread on Cruisers Forum which was started by someone who was boarded for a safety inspection. The thread has the usual random tangents and rants, but it is a great insight into what it is actually like to be a boatie in the States. It sounds like pretty much everyone gets boarded at some point or another. Most accounts you read of Coast Guard boardings talk about them being polite and respectful and that your best bet is to just smile, nod and stand out of their way. It is especially important to smile and nod when they're carrying assault rifles and they have machine guns on their boats aimed at you. And I guess that's about all you can do unless you want to risk 10 years in prison and a fine of $10,000. You can read more about their policy for boarding here.

Based on all this, you might think we would go for registering our boat in New Zealand, but that won't really help us out when we're sailing in the States. And I wonder if it might possibly make us more of a target if we're foreign flagged. Plus there is the humongous hassle of having to report in every time you move your boat in the States. If you arrive by car into the States, you don't have to check in with the authorities as you drive from city to city, but if you're on a foreign flagged boat, it is a whole different ball game.

So on balance, I guess we'll go with registering our boat in the States. Nice knowing you 4th Amendment. I'm trading you in for less hassle. And it's cheaper than registering your boat in New Zealand so that's a bonus. After all, if you're going to sell out, there might as well be some financial benefit.

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  1. We went through a very analytical process to determine where to document our boat. American cruisers need to be aware that sometimes the foreign policies of the USA can cause animosity toward Americans overseas. No need to poke the bear by flying an American flag (so sad, but true). Several cruisers opt for Canadian documentation and are warmly welcomed into foreign ports where Americans are hassled.

    We purchased our boat from a Canadian who had the boat documented in the Turks and Cacaos. We are both different nationalities (American and British) and documented the boat in the British Virgin Islands and the whole time the boat remained in Ft. Lauderdale. Just imagine the paperwork with three governments involved. Needless to say, we could not have accomplished this on our own. To guide us through the process and to ensure we really owned the boat at the end of the process we engaged the services of a professional registry service. It was worth every penny.

    Also, the country of documentation can affect the price of your boat insurance. It is not always best to insure your boat with a USA company. There are many top rated European companies underwriting yachts that are world cruising. Many of these companies will not underwrite a USA document boat.

    Also, in the USA foreign flagged vessels do NOT need to check in with customs at each port as you stated in this posting. US Customs can issue a Cruising Permit which is good for up to one year (no charge). We make a courtesy phone call when we enter a new customs region. We are not required to do this but the agents seem to appreciate the heads up that we are in port. You can find more about this on the customs web site.

    The other item that plagues American boat owners is the sales and use tax of each state. As a boat moves from state to state, local and state agencies can (violate your 4th amendment right) and board without reason. If you can not prove you have been in the state for less than that states specified time (usually 90 days), you can get hit with a USE tax. For example, if you purchase your boat and pay a sales and use tax of 5% and you find yourself in New Jersey for more than 90 days, technically, you owe the state of NJ 2% tax based on the valuation of your boat (the difference of the 5% you paid to another state and the 7% NJ tax). You will need to PROVE to any state agent boarding your boat that you have paid an equal amount of tax to another state. If not, they have a right to impound your boat until you can prove the tax is paid OR you pay the the tax. State agencies are stepping up this collection process due to the poor economies and need for increased taxes. Foreign flagged vessels with a cruising permit are exempt from state and local taxes. This is why you see so many "red flagged" mega yachts. They need to avoid the local taxing authorities. An error in overstaying at a particular port could cost a mega-yacht hundreds of thousands of dollars.

    Sorry for the rambling comment - but as you can tell this touched a nerve with me. We spent months muddling through the process to determine what was best for us. We felt we needed to have joint ownership of our boat just in case something happened to one of us. For example, if you are in a Dutch colony and the sole owner of the vessel dies, the boat becomes impounded until a person can prove they have a right to remove it from the colony. Assuming they recognize a will and testament from another country, this can take months to prove during which time the visas of the people aboard will expire. Joint ownership is important. In the USA, only US citizens can document a vessel. This is not the case outside of the USA.

    Tread carefully with your decision.

    All the best,

    s/v Cream Puff

    1. Thanks so much for your comment Mark - really useful and great food for thought! There is so much to think about and work through around the issue of boat registration. You make some great points which I'll need to look into further. It is a big decision and we'll need to make sure we make the right one. It all seems very complicated! Cheers - Ellen

  2. Since I can never imagine us sailing off shore, this will never be an issue for us. I had no idea they could board you anytime - the sleeping in the marina scenario would really freak me out. I remember I went out on a boat that flew a Greatful Dead Sail, and he said they were boarded all the time. Since you are registering her in the states, do you still have to meet all the Category 1 requirements?

    1. This Coast Guard thing is completely bonkers - imagine waking up to find a group of armed men and women on your boat!

      I believe the Cat 1 requirements only apply to NZ boats who are going offshore. I think if you are foreign flagged in NZ and going offshore, you don't have to be Cat 1 - but I could be wrong on that one. I'm not sure what would happen if you bought a boat overseas and got a NZ registration but only planned on doing coastal cruising - would it still have to be Cat 1 since you were technically offshore from NZ? I'll have to do some more investigating on this one.


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