Novi Boats, No Dice & P.S.

by Nicholas Walsh, PA

Federal law says only U.S.- built boats can fish commercially in U.S. waters. Lots of Canadian-built boats lobster, dredge and scallop in the waters off Maine and the other states.
What’s going on here?

Let’s review a few basics. A commercial fishing boat operating in U.S. waters and of five net tons or more must be “documented” (registered with the Coast Guard as a ship of the United States). A vessel of less than five net tons cannot be documented and therefore must be state registered.

Documented vessels are given various “endorsements”. A Certificate of Documentation may be endorsed for fishery, coastwise, registry, or recreation. “Fishery” means commercial fishing. “Coastwise” means transport of cargo or passengers between U.S. ports or on voyages to nowhere, for example tours that leave a port and return to that port with no intermediate stops. “Registry” endorsements are generally used for foreign trade. Any documented vessel may be used for recreational purposes, regardless of its endorsement, but a vessel documented with a recreational endorsement only may not be used for any other purpose. A commercial fishing vessel cannot receive a fishery endorsement unless it was built in the U.S., or wrecked and rebuilt, captured, or forfeited.

The “Novi boats” that are so common in local harbors are all of less than five net tons. Therefore they cannot be documented, and therefore the “build” requirement does not apply to these boats. There’s a U.S. Treasury letter that says so.

Maybe you are thinking that the typical Novi boat looks pretty chunky for being less than five tons. Net tonnage, however, has nothing to do with the weight of the ship. Net tonnage is a measure of the total cubic volume of the ship, minus (net of) certain spaces that cannot be used for cargo or fish: accommodation, shaft alleys, engine spaces etc. 100 cubic feet equals one ton; a five net ton ship has 500 cubic feet of usable cargo capacity. The unit of measure is ancient, and I understand that at some point in England it was decided that the space required to stow a “tun”, a huge barrel of 258 gallons capacity, would be the unit of a ship’s cargo carrying capacity; this “tun” was later set at 100 cubic feet.

Net tonnage is an elastic sort of measurement. A capable naval architect who can certify a boat at a net tonnage of say 7 tons for one client, may for another certify the same boat at 4.5 tons. My understanding is the boatbuilders and naval architects of Nova Scotia have developed high degree of expertise in building craft that defensibly measure just five net tons.

This loophole to the U.S. build requirement applies only to commercial fishing vessels. Any ship carrying passengers for hire or cargo, even if state registered, must be U.S. built. Not too long ago a midcoast lobster operation was cited for using Novi boats to smack lobsters. The argument was made that smacking is akin to fishing and therefore the build requirement should not apply. No dice.

Postscript to “Fishing, Fowling and Navigation” (September FV). I wrote “Although there is no Maine case on point, the law seems to distinguish between seaweed which is washed up on the shore and seaweed which is either growing in the intertidal zone or adrift. Seaweed washed up on shore belongs to the property owner. Seaweed which is growing in the intertidal zone or adrift is subject to the easement, and may be harvested by anyone.” Some folks interested in seaweed harvesting made the point to me that Maine statutory law declares that the State of Maine owns and shall control the harvesting of the living organisms existing below the high water mark, including, by implication marine algae (seaweed), and that therefore the public’s right to harvest seaweed in the intertidal zone is a settled matter, despite there being no Maine Supreme Court case so holding. The statutory argument is a good one, and certainly strengthens the already strong argument that seaweed is included in the colonial easement, same as clams, worms and mussels. But statutory law can be trumped by a constitutional argument, including the argument that for the state to declare the public’s right to clams growing on my land to be an unconstitutional taking. Do I think there is any likelihood of such an argument prevailing? I do not. Ancient common law holds that living seaweed falls under the colonial ordinance, and for the for the Maine Supreme Court to so hold would be a natural extension of its recent cases enlarging the public’s rights in the intertidal zone, as well as following the other states holding that, where intertidal land is owned by the upland owner, the public has a right to harvest growing seaweed. So I think my article is correct. The way to find out is to get a landowner to sue a seaweed harvester and take it up on appeal. Any takers?

Nicholas Walsh is an attorney specializing in maritime law and waterfront matters. He can be reached at 772-2191, or nwalsh@gwi.net.