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Editor: Rod Sullivan
Profession: Maritime Attorney

Category: Safety at Sea

According to "The Log", a Southern California boating newspapers, a number of Iraqis illegally crossed into the United States last November using a 37 ft. pleasure boat to evade Immigration. The boat was registered to an owner in El Cajon, a suburb of San Diego. It is suspected that on November 20, 2005 the owner put in the water in San Diego and drove to Baja's Rosarito Beach. From there, it is believed that the passengers swam out to the boat. However, during the voyage north a polypropelene line wrapped around one of their shafts and the boat was forced to call for help.

A radio call was made to a towing company, most likely either Sea Tow or Tow Boat US, that a pleasure boat needed a tow from Mexican waters to San Diego. After the towboat arrived the people aboard found out that the towboat Captain was required to bring tows picked up in Mexican waters to the U.S. Customs dock. When they found out, the boaters offered the captain cash to avoid Customs but he refused and radioed the Coast Guard.

Customs officers met the boat at the dock and the towboat left. A short time later the boat was sinking at the dock.

Apparently It is not unusual for Iraqi nationals to try to enter the United States at San Diego. Most often, they come by land seeking asylum. They favor San Diego because it has a large Iraqi population. "We do have Iraqis that show up at ports of entry,"spokesman Vince Bond said. "Generally, they are Chaldean Christians who are told by family members or someone else to get to the United States from Mexico. They typically walk to the border and ask for asylum for religious or political reasons." The Iraqi nationals are processed and granted what is called a credible-fear hearing, he said. At that time, a judge determines whether the individual's circumstances meet federally established criteria for asylum.

Does the owner's insurance cover the sinking? Probably not. If a boat is being used for an illegal purpose, the coverage is voided. The theory is that illegal trips subject the boat to dangers and stresses which the boat would never experience if it was being used as a pleasure boat for recreational purposes.

On example is this----if the Coast Guard seizes the boat, they have no obligation to bring it to shore or tow it safely. When the Coast Guard seizes a boat they are excercising a "Customs Function" and customs functions are excluded from the waiver of statutory immunity under the Federal Tort Claims Act. In short, they have sovereign immunity and they can do whatever they want with the boat, including sinking it.

The Coast Guard has been known to intentionally tow boats which have been seized with marijuana residue in tanks and holds, at a high speed by their bow sprint which, on wooden boats, causes them to fall apart and sink.

If they do that, there is no cause of action against the Coast Guard.