No Sanctions for Vessel Carrying Shark Fins
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SandBar 7:2, July, 2008

No Sanctions for Vessel Carrying Shark Fins

United States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976 (9th Cir. 2008).

Alicia Schaffner, 2L, Roger Williams University School of Law

The Ninth Circuit Court of Appeals found that a company that chartered a vessel to purchase and transport shark fins could not be sanctioned under the Shark Finning Prohibition Act (SFPA). The court held that enforcement of the Act would result in a violation of due process, since there was not enough notice that the chartered vessel would be included under the Act as a “fishing vessel.”

In 2000, Congress enacted the SFPA as an amendment to the Magnuson-Stevens Fishery Conservation and Management Act to eliminate the practice of shark finning. The Act makes it illegal to remove fins from a shark and discard its carcass at sea, to have these fins aboard a fishing vessel without the carcass, and to land any fin without the carcass.1

In 2002, Tai Loong Hong Marine Products, Ltd. (TLH) chartered a United States vessel, the King Diamond II (KD II), to meet a foreign fishing vessel on the high seas, purchase shark fins from the vessel, and deliver the fins to TLH at a Guatemalan port. The KD II subsequently met with over twenty vessels on the high seas and purchased approximately 64,695 pounds of shark fins. When the KD II was approximately 250 miles off the coast of Guatemala, the U.S. Coast Guard detained the ship when it found shark fins aboard the vessel without shark carcasses.

The United States government seized the shark fins and brought a complaint for the forfeiture of the shark fins. TLH did not contest that the ship was carrying the shark fins, but its classification as a fishing vessel. The company claimed that the forfeiture of the shark fins equaled a violation of due process. The district court ordered that the fins be forfeited, and TLH appealed.

On appeal, the first issue was whether the definition of “fishing vessel” under the Magnuson-Stevens Act gave sufficient notice to TLH that the vessel’s activities would subject the company to sanctions. The second issue was whether the regulations applied to the KD II since it acquired the fins while at sea and was bound for Guatemala and not a United States port.

Due Process
To avoid a violation of due process, fair notice of what conduct is prohibited must be given before a sanction is imposed. Furthermore, the notice must be explicit enough that a person of “ordinary intelligence” would be able to know what activity is forbidden and to act accordingly.2 

The court agreed with TLH that there was a violation of due process in this instance. There was nothing in the statutes or regulations that would have put TLH on notice that the vessel they chartered would be considered a fishing vessel as defined in the Magnuson-Stevens Act or 16 U.S.C. § 1802(18)(B).

Under the Act, the term fishing vessel includes any vessel that “aid[s] or assist[s]” another vessel in any activity relating to fishing.3 The court found that the KD II did not fall under this part of the definition because their activities of purchasing, storing, and transporting the fins did not aid or assist the foreign vessels in any fishing activities. The KD II was acting for its own commercial purposes. The court rejected the notion that the foreign vessels were aided by being allowed to stay out at sea longer to fish than they otherwise would have had the KD II not purchased the fins from them. According to the court, any benefit that the foreign vessels derived was purely incidental.

The court then looked at the implementing regulations of the statute and concluded that they do not provide fair notice of the KD II’s status as a fishing vessel. The court looked at two specific provisions within the regulation: the possession prohibition and the landing prohibition. The former prohibits the possession of the fins without carcasses aboard U.S. fishing vessels seaward of the inner boundary of the U.S. EEZ. The regulations also prohibit the landing of shark fins without carcasses by any U.S. or foreign fishing vessel if they were harvested seaward of the inner boundary of the U.S. EEZ, specifically including “any cargo vessel that received shark fins from a fishing vessel at sea” in its definition of fishing vessel.4 The government seized the fins under the possession provision, which does not include a provision regarding cargo vessels. Although the landing provision prohibits possession on cargo vessels, the U.S. government conceded that the landing provision ap­plied only to vessels landing in U.S. ports, not foreign ports such as Guate­mala where the KD II was to land. Looking at the regulations together, the court found that they did not provide notice that the KD II would be prohibited from possessing fins for the purpose of making a de­livery to a foreign port.

Despite Congress’ intent to curtail the practice of shark finning, the court found that under these circumstances there was no notice that the KD II could be considered a fishing vessel. Thus TLH had no way of knowing that the actions of the KD II (purchase, transportation, and storage of shark fins without a carcass) would be prohibited and subject to sanctions. Therefore, there was a violation of due process when the fins were subjected to forfeiture under SFPA.

1. United States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976, 978 (9th Cir. 2008) quoting 16 U.S.C. § 1857(1)(P).
2.  Id. at 980.
3.  Id.
4.  50 C.F.R. 600.1204.

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