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Jack v. State (12/12/2005) sp-5968
Jack v. State (12/12/2005) sp-5968
Notice: This opinion is subject to correction before publication
in the PACIFIC REPORTER. Readers are requested to bring errors
to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907)
264-0878, e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA,
| ) |
|
| ) Supreme Court No. S-11051 |
|
| ) |
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Petitioner, | ) Court of
Appeals |
|
| ) No. A-8062 |
|
| ) |
|
v. | ) Trial Court
No. |
|
| ) 1KE-S01-551 CR |
|
| ) |
|
VERNON G. JACK, V, | ) |
|
| ) O P I N I O N |
|
| ) |
|
Respondent. | ) [No. 5968 - December 12,
2005] |
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| ) |
|
|
|
|
Petition for Hearing from the Court of Appeals of the State of
Alaska, on Appeal from the Superior Court of the State of Alaska,
First Judicial District, Ketchikan, Larry Weeks, Judge.
Appearances: W.H. Hawley, Assistant Attorney General, Anchorage,
Gregg D. Renkes, Attorney General, Juneau, for Petitioner. Margi
A. Mock, Assistant Public Defender, Barbara K. Brink, Public
Defender, Anchorage, for Respondent.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and
Carpeneti, Justices.
MATTHEWS, Justice.
CARPENETI, Justice, concurring.
Vernon Jack is charged under the Alaska criminal code with
committing a sexual assault while on an Alaska state ferry in
Canadian waters. The question is whether Alaska has jurisdiction
to prosecute him. We conclude that jurisdiction exists for two
reasons. First, AS 44.03.010(2) grants offshore jurisdiction to
the State to the extent that the United States has jurisdiction,
and the United States has jurisdiction in this case. Second,
Alaska has jurisdiction under the widely recognized "effects
doctrine."
I. FACTS AND PROCEEDINGS
The facts as stated in Judge Stewart's opinion for the court of
appeals are as follows:
On May 12, 2001, the Alaska state ferry Matanuska was navigating
the Inside Passage on a voyage from Bellingham, Washington, to
Southeast Alaska. According to the grand jury's indictment,
while the Matanuska cruised through Canadian territorial waters,
Vernon G. Jack, V, engaged in sexual contact and sexual
penetration with S.N.F. and physically assaulted her. An Alaska
State Trooper who happened to be aboard the Matanuska
investigated Jack's conduct and arrested him. The grand jury in
Ketchikan charged Jack with one count of first degree sexual
assault, one count of second degree sexual assault, and four
counts of fourth degree assault for his misconduct aboard the
Matanuska while it was in Canadian territorial waters.[1]
Jack moved to dismiss the indictment on jurisdictional grounds.
The superior court granted his motion. On the State's petition
for review, the court of appeals affirmed. We granted the
State's petition for review.
II. ARGUMENTS OF THE PARTIES
The statutory sections most directly involved are AS 44.03.010(2)
and AS 44.03.030(1). These sections provide:
AS 44.03.010:
The jurisdiction of the state extends to water offshore from the
coast of the state as follows:
. . . .
(2) the high seas to the extent that jurisdiction is claimed by
the United States of America, or to the extent recognized by the
usages and customs of international law or by agreement to which
the United States of America or the state is a party[.]
AS 44.03.030:
This chapter does not limit or restrict
(1) the jurisdiction of the state over a person or subject inside
or outside the state that is exercisable by reason of
citizenship, residence, or another reason recognized by law[.][2]
The State argues in general that these sections reflect that the
legislature intended to provide for extraterritorial jurisdiction3
that is as broad as may be permitted under the United States
Constitution. Focusing on subsection .010(2) the State contends
that this section gives the State of Alaska jurisdiction when the
United States would have jurisdiction over acts committed on the
high seas. The State contends that the term "high seas" was
generally understood in 1959, when the statute was enacted, to
encompass foreign territorial waters, and that the United States
has jurisdiction over crimes committed aboard U.S. vessels in
foreign territorial waters. The State contends that since the
Matanuska is a U.S. vessel, the United States has jurisdiction,
and therefore, under subsection .010(2), so does the State of
Alaska.
The State notes that an additional element is needed for the
exercise of state extraterritorial jurisdiction under any theory.
The State must have a substantial interest that justifies the
exercise of jurisdiction. This requirement is met, according to
the State, because it has a strong interest in protecting the
personal safety of individuals onboard state-owned ferries.
Jack argues that neither subsection .010(2) nor subsection
.030(1) was meant to extend state jurisdiction to the maximum
that would be permitted by the federal constitution. As to
subsection .030(1), Jack contends that it "simply authorizes the
state to claim bases of jurisdiction other than territorial, to
the maximum extent permitted by law." Jack argues that this
authorization can only be exercised by additional legislation and
there is no additional legislation that is applicable to this
case.
Jack also argues that AS 44.03.010(2) does not apply because the
Canadian territorial waters where the alleged crime occurred are
not "high seas" within the meaning of the statute. Further, and
"[m]ore importantly," Jack contends the waters are not "offshore
from the coast of the state."4 In addition Jack argues that
subsection (3) of AS 44.03.010 and AS 44.03.020 indicate that the
reach of subsection .010(2) should be circumscribed because they
extend jurisdiction to and assert ownership of submerged land
including subsurface resources "lying under the water mentioned"
in section .010. Jack argues that subsection (2) can extend only
to waters over submerged lands to which the State might have a
reasonable jurisdictional and ownership claim. No such claim
could be asserted concerning submerged land in Canadian
territorial waters.
III. DISCUSSION
A. The Statute Should Be Broadly Construed
The statutory sections involved here were enacted in 1959 by the
First Alaska Legislature as part of Chapter 89 of the 1959
Session Laws of Alaska. We set forth in the margin the full text
of Chapter 89.5 The revisor of statutes revised Chapter 89 as a
part of the bulk formal revision that took place in 1962, but it
has not otherwise been amended. Because the revisor of statutes
is not permitted to change the meaning of a statute, we consider
the original session law language when interpreting what the
statute means.6
Section 1 of Chapter 89 contained, in its original form, language
indicating that the state's jurisdiction should be broadly
construed. The first sentence of section 1 stated that the
jurisdiction of the state not only "extends to water offshore"7
but "shall extend to and over, and be exercisable with respect
to, waters offshore . . . ."8 Further, subsection (2)
underscored the breadth of the intended reach of state
jurisdiction by use of inclusive words and phrases such as
"whatever," "may be," "any," and "or otherwise." Thus in its
original form section 1(2) provided:
The jurisdiction of this State shall extend to and over, and be
exercisable with respect to, waters offshore from the coasts of
this State as follows . . . (2) The high seas to whatever extent
jurisdiction therein may be claimed by the United States of
America, or to whatever extent may be recognized by the usages
and customs of international law or by any agreement,
international or otherwise, to which the United States of America
or this State may be party.[9]
That Chapter 89 was intended to reflect a broad assertion of
state jurisdiction is also evident from its other sections. Both
section 3(1) and section 4 make it clear that the provisions of
Chapter 89 are not to be construed to limit state jurisdiction.
Section 3(1) also suggests that extraterritorial jurisdiction
over a person or subject "is exercisable by reason of
citizenship, residence or for any other reason recognized by
law."10 Similarly, section 4 implies that state jurisdiction over
an area may be extended "under another provision or rule of law."11
Thus Chapter 89 implies that state jurisdiction is to be defined
by recognized legal principles even if they are not part of any
statute. It is unlikely that a legislature expressing this
position would intend anything other than that a broad
construction be given to the statutory jurisdictional provisions
that it enacted.
B. Jurisdiction Under AS 44.03.010(2)
1. High seas
One issue that must be resolved is whether the term "high seas"
as used in AS 44.03.010(2) encompasses the Canadian territorial
waters where the alleged sexual assault took place. The State
argues that the term as understood in 1959 when the statute was
enacted "includes all ocean waters outside the boundaries of the
low-water mark and therefore the territorial waters of Canada."
Jack, by contrast, argues that "high seas" encompasses "only
those seas beyond the territorial waters of any nation." Jack
agrees that at one time "it was undisputed that the term 'high
seas' included all waters outside the boundary of the low water
mark" but contends that "by the second half of the twentieth
century" the general understanding had changed to the more narrow
view that he espouses.
The revised fourth edition of Black's Law Dictionary, published
in 1968, gives several definitions of the term "high seas,"
including those advocated by the parties. Thus, in support of
the State's view, Black's defines "high seas" as simply "the
ocean" or as beginning Aaccording to the "merican view, at low-
water mark," or still further, as "any waters on the sea-coast
which are without the boundaries of low-water mark."12 In support
of Jack's view, Black's also defines "high seas" as "the waters
of the ocean without the boundary of any country."13
In view of the broad interpretation that should be given to the
statute, we think that the State's definition encompassing all
ocean waters beyond the boundaries of the low-water mark is
appropriate. Relatedly, since AS 44.03.010(2) provides that
jurisdiction of the state duplicates the high seas jurisdiction
of the United States, case law pertaining to the high seas
jurisdiction of the United States is also relevant. There is
case law that applies the term "high seas" to foreign territorial
waters.14
2. Water offshore from the coast of the state
Jack argues that the introductory language of AS 44.03.010
extending the jurisdiction of the state "to water offshore from
the coast of the state," necessarily excludes the Canadian waters
involved here. He argues that "[t]his court must assume that the
legislature intended that the introductory clause have an
operative effect on subsection (2)" and contends that "[t]he
coastal waters of Alaska do not extend farther than the northern
and southern borders of the state."
While we can accept Jack's statement that the coastal waters of
Alaska do not extend beyond the northern and southern boundaries
of the state, that does not mean that the water offshore from
Alaska's coasts is limited by its northern and southern borders.
The term "offshore" does not necessarily connote any particular
distance from the coast. One definition of "offshore" as an
adjective is "distant from the shore."15 We note also that
Alaska's coastline is extensive and faces in all directions,
including southeast across the Gulf of Alaska toward the route of
the Alaska Marine Highway in question here.
But we do not believe that there is either a distance or a
compass-point directional component to the "water offshore"
phrase as it is used in section .010. Given that subsection (2)
undertakes to duplicate the high seas jurisdiction of the United
States, it would be strange to use a phrase so devoid of useful
limits if the intent actually were to constrain the State's
exercise of high seas jurisdiction. In our view the function of
the phrase is simply to distinguish between ocean waters seaward
from the coast of Alaska, to which the statute may apply if the
conditions of the statute are met, and waters landward from the
coast of Alaska, that is, Alaska inland waters, to which the
statute does not apply.16 We conclude therefore that the crime
alleged in this case occurred in "water offshore from the coast"
of Alaska within the meaning of that phrase as used in AS
44.03.010.
3. Submerged lands provisions
As noted above, Jack argues that the submerged lands provisions
of subsection .010(3) and section .020 limit the high seas
jurisdiction exercisable under subsection .010(2). Subsection
.010(3) and section .020 assert claims of jurisdiction and
ownership over the surface and subsurface "of submerged land . .
. lying under the water mentioned in this section," referring
generally to section .010. Since any claim by Alaska over
submerged lands in Canadian territorial waters would be an
absurdity, Jack contends that this means that "high seas" as used
in subsection .010(2) cannot extend to Canadian territorial
waters.
We do not believe that subsection .010(2) and the submerged lands
provisions are as closely linked as Jack contends. It is clear
that high seas jurisdiction under subsection (2) extends beyond
the "marginal sea" mentioned in subsection (1). The "marginal
sea" encompasses at least all of the state's territorial waters,
generally extending three miles from the coast.17 The "high seas"
are intended to extend beyond the marginal sea, otherwise there
would be no need for subsection (2). But there has never been a
plausible basis for the state to assert ownership of submerged
land beyond the three-mile limit, and even more clearly, beyond
the outermost limits of the marginal sea.18 Thus if Jack's
argument is right, subsection (2) jurisdiction would not extend
beyond the marginal sea and subsection (2) would be completely
superfluous. This is clearly not what the legislature intended.
Further support for the view that neither subsection (3) of
section .010 nor AS 44.03.020 should be read as limiting high
seas jurisdiction is found in the nonwaiver clause of AS
44.03.040, as it was originally phrased in section 4 of Chapter
89 of the Session Laws of Alaska of 1959.19 As so phrased the
clause stated that "nothing . . . in this act shall be construed
as a waiver or relinquishment of jurisdiction . . . by the State
over or in any area to which such jurisdiction . . . extends by
virtue of this act . . . ."20 This suggests that the various
jurisdictional-bestowing sections and subsections of the act were
intended to be construed independently and not as limiting one
another. The same conclusion could also be reached merely by
applying a rule of broad construction, for it is not logically
necessary to read subsection .010(3) or section .020 as
limitations on the jurisdiction expressed in subsection .010(2).
For these reasons we believe that the submerged lands provisions
cannot be read as limiting high seas jurisdiction under
subsection .010(2). Instead, it seems reasonable to interpret
the provisions as containing an implied clause stating something
like "to the extent permitted by the constitution and laws of the
United States."
4. United States jurisdiction
Since the State has high seas jurisdiction under AS 44.03.010(2)
only to the extent that the United States also has jurisdiction,
we discuss next why the United States could exercise jurisdiction
in this case. United States criminal jurisdiction exists over
crimes committed on United States flagged ships, even when they
are in foreign territorial water, if the local sovereign has not
asserted jurisdiction.21 Generally, the local sovereign is not
permitted to assert jurisdiction over the United States or other
foreign vessels unless the "peace or dignity of the country, or
the tranquillity of the port" is involved.22 Under the right of
innocent passage doctrine, a coastal nation is not authorized to
assert jurisdiction over a foreign vessel unless "the
consequences of the crime extend[s] to the coastal State," or
"the crime is of a kind to disturb the peace of the country or
the good order of the territorial sea."23 Absent an assertion of
local sovereign jurisdiction, "it is the duty of the courts of
the United States to apply to offenses committed by its citizens
on vessels flying its flag, its own statutes, interpreted in the
light of recognized principles of international law."24 Here
there has been no assertion of Canadian jurisdiction. Thus the
United States has jurisdiction.25
Even though the jurisdictional prerequisites of AS 44.03.010(2)
are satisfied, there is an additional requirement that must be
met. The State must have a substantial interest in order to
exercise jurisdiction. Under the circumstances of this case the
State's interest also serves as an independent basis for the
exercise of jurisdiction under the effects doctrine. We discuss
it in the section that follows.
C. Jurisdiction Under the Effects Doctrine
1. State extraterritorial jurisdiction in general
In general, a state may exercise extraterritorial jurisdiction
when three conditions are present: (1) there must be a
sufficient state interest, (2) there can be no conflict with
federal law, and (3) the crime in question must not have been
prosecuted by federal authorities, or the authorities of a
foreign jurisdiction.26
The much-cited case of Skiriotes v. Florida supports the exercise
of extraterritorial state jurisdiction on several grounds.27
Skiriotes involved a prosecution by the State of Florida of a
fisherman for taking sponges with prohibited equipment some six
miles offshore.28 The fisherman's conviction was upheld by the
United States Supreme Court.29 The Court assumed that the offense
was committed outside the territorial waters of Florida, but
nonetheless indicated that the state had jurisdiction. The Court
observed that "Florida has an interest in the proper maintenance
of the sponge fishery,"30 and that this plus the power of the
state to govern the conduct of its citizens was sufficient to
give Florida jurisdiction:
If the United States may control the conduct of its citizens upon
the high seas, we see no reason why the State of Florida may not
likewise govern the conduct of its citizens upon the high seas
with respect to matters in which the state has a legitimate
interest and where there is no conflict with acts of Congress.[31]
The Court also suggested that jurisdiction could be based on the
fact that the fisherman conducted his operations "by means of
Florida boats."32 This meant that the principle that "a vessel at
sea is regarded as part of the territory of the state" could also
supply a basis for jurisdiction.33
2. The effects doctrine
The effects doctrine recognizes that a state may exercise
extraterritorial jurisdiction over conduct outside the state that
has or is intended to have a substantial effect within the state
so long as the exercise of jurisdiction does not conflict with
federal law and is otherwise reasonable. The effects doctrine is
widely recognized and accepted.34
This court has utilized the effects doctrine as the basis for the
exercise of state extraterritorial jurisdiction. In State v.
Bundrant we held that state crabbing regulations could be applied
extraterritorially to non-citizens.35 We noted that the species
in question was migratory between state waters and adjacent areas
of the high seas and that regulation of the latter areas was
necessary to protect and preserve a state fishery.36 In response
to an argument that Skiriotes only permitted the State to apply
its laws to Alaska citizens we invoked the effects doctrine "that
acts done outside a jurisdiction which produce detrimental
effects inside it justify a state in punishing he who caused harm
as if he had been present at the place of its effect."37 We
concluded on the basis of this principle that the application of
Alaska's crab fishing regulations extraterritorially was a proper
extension of the police power of the state, regardless of the
residence or citizenship of a violator.38
The Supreme Court of Florida in State v. Stepansky recognized
that Bundrant and Sieminski reflect the principles incorporated
in the effects doctrine.39 The Stepansky case illustrates the
application of the effects doctrine to circumstances resembling
the case before this court. Stepansky was charged in a Florida
state court with, among other things, attempted sexual battery of
a minor onboard a cruise ship while it was located some 100 miles
off the coast of Florida. The ship departed from and returned to
a Florida port, but it was owned by a foreign corporation and
registered in Liberia. The charge was premised on a maritime
jurisdiction statute of the State of Florida granting
jurisdiction over criminal acts committed on a ship during a
voyage on which over half of the passengers embarked and planned
to disembark in Florida. The court held that jurisdiction under
this statute was permitted under the effects doctrine.40
At the outset the court recognized that the effects doctrine had
its roots in the United States Supreme Court case of Strassheim
v. Daily.41 In that case the State of Michigan sought to
extradite the defendant from Illinois to respond to charges of
fraud and bribery with respect to machinery that he had sold to
the State of Michigan. The extradition proceeding was challenged
and Daily claimed that he was not in Michigan at the time of the
crimes. The district court held that Michigan lacked
jurisdiction.42 But the United State Supreme Court reversed in an
opinion by Justice Holmes which concluded that Michigan could
prosecute for acts which occurred outside of the state:
If a jury should believe the evidence, and find that Daily did
the acts that led Armstrong to betray his trust, deceived the
board of control, and induced by fraud the payment by the state,
the usage of the civilized world would warrant Michigan in
punishing him, although he never had set foot in the state until
after the fraud was complete. Acts done outside a jurisdiction,
but intended to produce and producing detrimental effects within
it, justify a state in punishing the cause of harm as if he had
been present at the effect, if the state should succeed in
getting him within its power.[43]
Stepansky also relied on the expression of the effects doctrine
in the Restatement (Third) of the Foreign Relations Law of the
United States.44
The Stepansky court concluded that Florida could exercise
jurisdiction "under the effects doctrine as long as the exercise
of jurisdiction does not conflict with federal law and the
exercise of jurisdiction is a reasonable application of the
effects doctrine." In determining the latter, the court observed
that Florida "has an interest in ensuring the protection of
persons traveling to or from Florida by sea" and further that
"Florida's tourism industry could be significantly affected if
crimes that occur onboard cruise ships where a majority of the
fare-paying passengers embark and disembark in Florida were to go
unprosecuted." These interests plus the probability that the
crime would go unpunished unless Florida acted made the exercise
of Florida jurisdiction under the effects doctrine reasonable.45
The major difference between the present case and Stepansky is
that in Stepansky there was a specific state jurisdictional
statute authorizing the prosecution; in the present case --
putting aside for the purposes of this part of the opinion AS
44.03.010(2) -- there is not. In our view this difference is not
dispositive.
Several recent cases have recognized that the application of the
effects doctrine need not depend on the existence of a specific
statute granting extraterritorial jurisdiction. Thus in Rios v.
State the Wyoming Supreme Court applied the doctrine to a charge
of interfering with child custody when neither the child nor the
defendant-father had ever been in the state.46 Treating the
question as one involving subject matter jurisdiction, the court
held that the prosecution was justified under the effects
doctrine even though Wyoming did not have a statute permitting
the exercise of extraterritorial jurisdiction: "While Wyoming
does not have a specific statute which permits the exercise of
jurisdiction when extraterritorial conduct causes a result in
this state, the concept articulated in Strassheim v. Daily does
not depend upon the existence of such a statute."47 Since the
mother of the child had become a resident of the State of Wyoming
"the failure to return the child had its effect in the State of
Wyoming" sufficient to justify application of the effects
doctrine.48 The court also questioned whether "there is any
jurisdiction other than Wyoming which would have taken an
interest in pursuing Rios' unlawful conduct."49 In In re Vasquez
the court recognized that the absence of a special jurisdictional
statute was not necessarily a bar to state jurisdiction under the
effects doctrine, observing that
Oregon has no such statute, but it does not necessarily follow
that the Oregon courts are disabled from relying on the rule of
Strassheim. The Strassheim Court itself made no reference to the
need for such a statutory provision, and at least one State court
has held specifically that application of the effects doctrine is
not dependent upon the existence of a jurisdictional statute
explicitly providing for it.[50]
The same rule has been recognized in South Carolina, as well as
in a leading text on criminal law: "As noted in State v. Dudley,
581 S.E.2d 171 (App. 2003), though 'states have adopted the
Strassheim doctrine by enacting a jurisdictional statute,'
elsewhere 'the absence of a state jurisdictional statute is not
dispositive.' "51
We agree with the authorities that have recognized that the
effects doctrine can supply a stand-alone basis for the exercise
of state extraterritorial jurisdiction. Further, AS 44.03.030(1)
contemplates that extraterritorial jurisdiction may be exercised
in the absence of a special statute so long as the exercise is
based on established legal principles.52 As we noted earlier,
this subsection implies that the state may exercise
extraterritorial jurisdiction for any "reason recognized by law."53
The breadth of this phrase suggests that case law as well as
statutes are meant to serve as the basis for recognition of
jurisdictional principles. Reading the 1959 act as a whole it
seems apparent that the reference to "by law" in subsection
.030(1) and the similar reference to the "rule of law" in section
.040 are meant to be have a broader subject than just statutory
provisions.
Because the effects doctrine is widely recognized by case law and
legal commentators, it is a "reason recognized by law" within the
meaning of AS 44.03.030(1). No other or more specific statute is
needed to justify the exercise of state extraterritorial
jurisdiction. But what is required is that the state must have a
substantial interest so that the exercise of jurisdiction under
the effects doctrine is reasonable.
This requirement is met under the circumstances of this case.
The Alaska ferry route to the state of Washington is an important
transportation link between the state and the contiguous forty-
eight states. Most of the cities and towns in Southeastern
Alaska served by this link lack any road access. Further, the
ferries are important to the tourism industry. As the State puts
it: "If people believe that crimes can be committed on ferries
traveling to Alaska without any real risk of being prosecuted, it
will have a harmful effect on Alaska's welfare -- particularly on
the personal security of ferry crew members and persons traveling
to and from Alaska on ferries as well as on tourism and the
economy." These interests are substantial and suffice to satisfy
the application of the effects doctrine in this case. Further,
the exercise of jurisdiction by Alaska is reasonable given the
importance of the ferry system to the state and its people, and
the lack of onboard public safety regulation by any other
governmental authority.54
We conclude that under the effects doctrine Alaska has sufficient
interests to justify the prosecution of the crime charged in this
case and that the exercise of Alaska jurisdiction is reasonable.
IV. CONCLUSION
For the above reasons we conclude that Alaska has jurisdiction
over crimes committed on state ferries operating in Canadian
waters. Two independent alternative grounds support
jurisdiction: AS 44.03.010(2) and the effects doctrine. The
decisions of the superior court and the court of appeals are
REVERSED and this case is REMANDED to the superior court for
further proceedings consistent with this opinion.
CARPENETI, J., concurring.
I agree that Alaska has jurisdiction to prosecute Jack, and that
the decision of the court of appeals is therefore properly
reversed. And I agree that Alaska's jurisdiction is found under
AS 44.03.030(1) and the effects doctrine. But I would not base
jurisdiction here, as today's opinion does, on the additional
rationale that the crime occurred on the high seas and that
Alaska therefore has jurisdiction under AS 44.03.010(2).
The term "high seas" has been variously interpreted by the
courts, as today's opinion notes, but the modern cases have
strongly tended towards interpreting the term to exclude the
territorial waters of nations. "By . . . 1920, the Supreme Court
generally interpreted 'high seas' to mean international or non-
sovereign waters."1 In 1907, in The Hamilton,2 Justice Holmes
characterized the "high seas" as "outside the territory, in a
place belonging to no other sovereign."3 In 1909, in American
Banana Co. v. United Fruit Co.,4 he referred to the "high seas"
as a region "subject to no sovereign."5 By 1920, when Congress
adopted the Death on the High Seas Act (DOHSA),6 it was clear
that Congress understood the Supreme Court to have " interpreted
high seas to mean non-territorial waters:
Under the Supreme Court's analysis in McDermott [Int'l, Inc. v.
Wilander][8] the consistent reliance on these decisions in
setting the terms of the debate over DOHSA strongly suggests that
Congress understood "high seas" to mean what these cases said it
did, that is, international waters.[9]
In the years following the adoption of DOHSA in 1920, "[t]he
Supreme Court continued to define high seas as international
waters. In 1923, in Cunard Steamship Co. v. Mellon,11 the
question concerned the reach of the National Prohibition Act,
which was enacted pursuant to the Eighteenth Amendment. The
latter governed conduct within "the United States and all
territory subject to the jurisdiction there of. The Court noted
that the Act had no effect outside the territorial waters of the
United States. The Court rejected the argument that the
Prohibition Amendment covered ships 'outside the waters of the
United States, whether on the high seas or in foreign waters,'
because 'on the high seas . . . there is no territorial
sovereign.'"
The ferry Matanuska was in Canadian territorial waters, in the
Inside Passage, when the events in question allegedly occurred.
Because the territorial waters of Canada do not appear to be the
"high seas", I would not base the states jurisdiction on AS
44.03.010(2)
.-------------------------------------------------------------
1State v. Jack, 67 P.3d 673, 674 (Alaska App. 2003).
2We set out here the full text of AS 44.03.010 and AS 44.03.030, and the other
statutory sections that were enacted with it, AS 44.03.020 and .040:
AS 44.03.010 provides:
The jurisdiction of the state extends to water
offshore from the coast of the state as follows:
(1) the marginal sea to its outermost limits as those
limits are from time to time defined or recognized by the
United States of America by international treaty or
otherwise;
(2) the high seas to the extent that jurisdiction is
claimed by the United States of America, or to the extent
recognized by the usages and customs of international law
or by agreement to which the United States of America or
the state is a party;
(3) submerged land including the subsurface of
submerged land, lying under the water mentioned in this
section.
AS 44.03.020 provides:
The ownership of the water and submerged land
described in AS 44.03.010 is in the state unless ownership
of a parcel or area is held by a person or entity by a valid
and effective instrument of conveyance or by operation of
law.
AS 44.03.030 provides:
This chapter does not limit or restrict
(1) the jurisdiction of the state over a person or
subject inside or outside the state that is exercisable by
reason of citizenship, residence, or another reason
recognized by law;
(2) jurisdiction over or ownership of other water or
land under other water inside or forming part of the
boundaries of the state;
(3) legislative jurisdiction of the United States over
an area to which legislative jurisdiction is ceded by the
state and which remains in the ownership of the United
States.
AS 44.03.040 provides:
This chapter does not alter the geographic area to
which a statute of the state applies if the statute specifies
the area precisely in miles or by another numerical
designation of distance or position. Nothing in the statute
or in this chapter is a waiver or relinquishment of
jurisdiction over or ownership by the state of an area to
which jurisdiction or ownership extends under another
provision or rule of law.
3There are three categories of extraterritorial jurisdiction:
(a) jurisdiction to prescribe, i.e., the authority of a state to
make its law applicable to persons or activities; (b)
jurisdiction to adjudicate, i.e., the authority of a state to
subject particular persons or things to its judicial process;
and (c) jurisdiction to enforce, i.e., the authority of a state
to use the resources of government to induce or compel
compliance with its law.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES,
Introductory Note to Part IV (1987). The parties make no distinction between
these
categories in this case and we believe that all three are involved.
4AS 44.03.010.
5Chapter 89, SLA 1959 provides:
Be it enacted by the Legislature of the State of Alaska:
Section 1. The jurisdiction of this State shall extend to
and over, and be exercisable with respect to, waters
offshore from the coasts of this State as follows:
(1) The marginal sea to its outermost limits as
said limits may from time to time be defined or recognized
by the United States of America by international treaty or
otherwise.
(2) The high seas to whatever extent jurisdiction
therein may be claimed by the United States of America, or
to whatever extent may be recognized by the usages and
customs of international law or by any agreement,
international or otherwise, to which the United States of
America or this State may be party.
(3) All submerged lands including the subsurface
thereof, lying under said aforementioned waters.
Sec. 2. The ownership of the waters and submerged
lands enumerated or described in Section 1 of this act shall
be in this State unless it shall be, with respect to any given
parcel or area, in any other person or entity by virtue of a
valid and effective instrument of conveyance or by
operation of law.
Sec. 3. Nothing contained herein shall be construed to
limit or restrict in any way:
(1) The jurisdiction of this State over any person
or with respect to any subject within or without the State
which jurisdiction is exercisable by reason of citizenship,
residence or for any other reason recognized by law.
(2) Jurisdiction or ownership of or over any other
waters or lands thereunder, within or forming part of the
boundaries of this State. Nor shall anything herein be
construed to impair the exercise of legislative jurisdiction
by the United States of America over any area to which
such jurisdiction has been validly ceded by this State and
which remains in the ownership of the United States of
America.
Sec. 4. Nothing in this act shall alter the geographic area
to which any statute of this State applies if such statute
specifies such area precisely in miles or by some other
numerical designation of distance or position. However,
nothing in any such statute or in this act shall be construed
as a waiver or relinquishment of jurisdiction or ownership
by the State over or in any area to which such jurisdiction
or ownership extends by virtue of this act or any other
provision or rule of law.
6See Employment Sec. Comm'n v. Wilson, 461 P.2d 425, 428 (Alaska 1969).
7AS 44.03.010.
8Ch. 89, s 1, SLA 1959 (emphasis indicates words the revisor omitted or
altered).
9Id.
10Id. ss 3 (emphasis added).
11Id. ss 4 (emphasis added).
12BLACK'S LAW DICTIONARY 1516 (4th ed. rev. 1968).
13Id.
14See United States v. Dewey, 188 U.S. 254, 271 (1903) ("[T]he high seas include
coast waters without the boundaries of low-water mark, though within bays or
roadsteads, - waters on which a court of admiralty has jurisdiction."); United
States v.
Rodgers, 150 U.S. 249, 261-64 (1893) ("The term [high seas], in the eye of
reason, is
applicable to the open, uninclosed portion of all large bodies of navigable
waters,
whose extent cannot be measured by one's vision, and the navigation of which is
free
to all nations and people on their borders, by whatever names those bodies may
be
locally designated," regardless of whether the waters are within the territory
of
another nation.); United States v. Ross, 27 F. Cas. 899, 900 (C.C.R.I. 1813)
(No.
16,196) ("[T]he words, 'high seas,' mean any waters on the sea coast, which are
without the boundaries of low water mark; although such waters may be in a
roadstead or bay within the jurisdictional limits of a foreign government.");
see also
Murray v. Hildreth, 61 F.2d 483, 484 (5th Cir. 1932) ("The term 'high seas'
includes
waters on the sea-coast without the boundaries of low-water mark.") (internal
quotations omitted). There is also case law that supports Jack's view. See,
e.g., Maul
v. United States, 274 U.S. 501, 511 (1927) ("The high sea is common to all
nations
and foreign to none . . . ."); Cunard S.S. Co. v. Mellon, 262 U.S. 100, 123
(1923)
("[O]n the high seas . . . there is no territorial sovereign . . . ."); United
States v.
Wilson, 28 F. Cas. 718, 720 (C.C.N.Y. 1856) (No. 16,731) ("[T]he term high seas
alone embraces no waters that are land-locked in their position, and are subject
to
territorial jurisdiction.").
15WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1568 (1966).
16We use here the terms used by the United States Supreme Court in United States
v.
Maine, 469 U.S. 504, 512-13 (1985), in describing the operation of the Submerged
Lands Act, 43 U.S.C. s 1312:
Under s 4 of the Submerged Lands Act, 43 U.S.C. s
1312, a coastal State's boundary is measured from its legal
coastline. The coastline is defined as "the line of ordinary
low water along that portion of the coast which is in direct
contact with the open sea and the line marking the seaward
limit of inland waters." s 1301(c). A State's seaward
boundary generally is set as a line three geographical miles
distant from its coastline. s 1312. Waters landward of the
coastline therefore are internal waters of the State, while
waters up to three miles seaward of the coastline are also
within a State's boundary as part of the 3-mile ring referred
to as the marginal sea.6
6 Under s 3(a) of the Submerged Lands Act
the States have title to and ownership of the
lands beneath navigable waters within their
boundaries. 43 U.S.C. s 1311(a).
17See Maine, 469 U.S. at 513; State v. Sieminski, 556 P.2d 929, 930 (Alaska
1976).
18See Maine, 469 U.S. at 512-13.
19See supra page 7.
20Ch. 89, s 4, SLA 1959.
21United States v. Flores, 289 U.S. 137, 150 (1933). See Lauritzen v. Larsen,
345
U.S. 571, 584-86 (1953):
Perhaps the most venerable and universal rule of
maritime law relevant to our problem is that which gives
cardinal importance to the law of the flag. Each state under
international law may determine for itself the conditions on
which it will grant its nationality to a merchant ship,
thereby accepting responsibility for it and acquiring
authority over it. Nationality is evidenced to the world by
the ship's papers and its flag. . . .
This Court has said that the law of the flag
supersedes the territorial principle, even for purposes of
criminal jurisdiction of personnel of a merchant ship,
because it "is deemed to be a part of the territory of that
sovereignty (whose flag it flies), and not to lose that
character when in navigable waters within the territorial
limits of another sovereignty.". . .
It is significant to us here that the weight given to the
ensign overbears most other connecting events in
determining applicable law. . . . "And so by comity it came
to be generally understood among civilized nations that all
matters of discipline, and all things done on board, which
affected only the vessel, or those belonging to her, and did
not involve the peace or dignity of the country, or the
tranquillity of the port, should be left by the local
government to be dealt with by the authorities of the nation
to which the vessel belonged as the laws of that nation, or
the interests of its commerce should require." (Footnotes
and citations omitted.)
22Lauritzen, 345 U.S. at 585-86 (quoting Flores, 289 U.S. at 158); see also Mali
v.
Keeper of the Common Jail, 120 U.S. 1, 14 (1887).
23United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 27,
reprinted
in 3 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW app. C, at 175-76
(4th ed. 2004); Convention on the Territorial Sea and the Contiguous Zone, Apr.
29,
1958, art. 19(1), reprinted in id. at 145.
24Flores, 289 U.S. at 159; accord United States v. Reagan, 453 F.2d 165, 169-71
(6th
Cir. 1971).
25According to the State, the United States has also not manifested an interest
in
prosecuting Jack.
26"If the United States may control the conduct of its citizens upon the high
seas, we
see no reason why the State . . . may not likewise govern the conduct of its
citizens
upon the high seas with respect to matters in which the State has a legitimate
interest
and where there is no conflict with acts of Congress." Skiriotes v. Florida,
313 U.S.
69, 77 (1941); see also Flores, 289 U.S. at 159 (finding that it is the duty of
United
States courts to apply United States laws "[i]n the absence of . . . any
assertion of
jurisdiction by the territorial sovereign"); Sieminski, 556 P.2d at 933; State
v.
Bundrant, 546 P.2d 530, 552 (Alaska 1976); Corbin v. State, 672 P.2d 156 (Alaska
App. 1983); State v. Stepansky, 761 So. 2d 1027, 1036 (Fla. 2000) (emphasizing
that
the statute at issue limited state jurisdiction "by operating only where the
crime has
not been prosecuted by any other government entity, including the federal
government
or the foreign country in which the ship is registered").
27313 U.S. 69 (1941).
28Id. at 70.
29Id. at 79.
30Id. at 75.
31Id. at 77.
32Id. at 78.
33Id.
34RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES s
402(1)(c) (1987). See, e.g., Hartford Fire Ins. Co. v. California, 509 U.S.
764, 796
(1993) (relying on effects doctrine to find jurisdiction); United States v.
Nippon Paper
Indus. Co., Ltd., 109 F.3d 1, 9 (1st Cir. 1997) (same); United States v. Davis,
767 F.2d
1025, 1036 (2d Cir. 1985) (same; citing the Restatement); State v. Miller, 755
P.2d
434, 437-38 (Ariz. App. 1988) (citing the Restatement and finding no
jurisdiction
where defendant's conduct did not, and was not intended to, have substantial
effects
within the state); Jonathan Turley, "When in Rome": Multinational Misconduct and
the Presumption Against Extraterritoriality, 84 NW. U. L. REV. 598, 611 (1990)
(noting the gradual embrace of the effects doctrine); Ryuichi Yamakawa,
Territoriality and Extraterritoriality: Coverage of Fair Employment Laws After
EEOC v. Aramco, 17 N.C. J. INT'L L. & COM. REG. 71, 75 (1992) (citing the
widespread acceptance of the effects doctrine in the U.S.).
35546 P.2d 530, 554-56 (Alaska 1976).
36Id. at 552.
37Id. at 555. In support of this statement we cited Strassheim v. Daily, 221
U.S. 280
(1911), a seminal case on the effects doctrine; we also cited section 18 of the
Restatement (Second) of Foreign Relations (1965), which defined the effects
doctrine
as follows:
A state has jurisdiction to prescribe a rule of law attaching
legal consequences to conduct that occurs outside its
territory and causes an effect within its territory, if either
(a) the conduct and its effect are generally
recognized as constituent elements of a crime or tort
under the law of states that have reasonably
developed legal systems, or
(b) (i) the conduct and its effect are constituent
elements of activity to which the rule applies; (ii) the
effect within the territory is substantial; (iii) it occurs
as a direct and foreseeable result of the conduct
outside the territory; and (iv) the rule is not
inconsistent with the principles of justice generally
recognized by states that have reasonably developed
legal systems.
38Bundrant, 546 P.2d at 556. In Sieminski, 556 P.2d 929, this court followed
Bundrant and held that the State had a sufficient interest to exercise
extraterritorial
jurisdiction over the taking of scallops on the high seas outside of state
territorial
waters. In F/V American Eagle v. State, 620 P.2d 657 (Alaska 1980), we
reaffirmed
Bundrant in upholding the forfeiture of a bond representing the value of a crab
fishing
vessel that was seized for fishing out of season in waters beyond the three-mile
limit.
39761 So. 2d at 1035.
40Id. at 1036-37.
41221 U.S. 280.
42Id. at 281-82.
43Id. at 284-85.
44761 So. 2d at 1035. The court set out the applicable portion of section 402
of the
Restatement (Third) and commented as follows:
The Restatement of Foreign Relations provides:
[A] state has jurisdiction to prescribe law with respect to:
(1) (a) conduct that, wholly or in substantial part, takes
place within its territory;
(b) the status of persons, or interests in things, present
within its territory;
(c) conduct outside its territory that has or is intended to
have substantial effect within its territory;
(2) the activities, interests, status, or relations of its
nationals outside as well as within its territory; and
(3) certain conduct outside its territory by persons not its
nationals that is directed against the security of the state or
against a limited class of other state interests.
Restatement, supra, s 402 (emphasis supplied).
Accordingly, the Restatement recognizes that states may
prosecute a person for an act committed outside the state on
the basis that the act has a substantial effect within the
state, similar to the ability to prosecute an act that occurred
wholly or partially within the territory of the state. See id.
s 402(1). This is in addition to the ability of states to
prosecute on the basis that the defendant is a citizen,
resident or domiciliary of the state. If the basis of
jurisdiction is that the defendant is a state citizen or
resident, the act must generally also have a significant
effect within the State. See id. s 402 reporter's note 5.
Stepansky, 221 U.S. at 1035 n.13 (alteration in original).
45Id. at 1036-37.
46733 P.2d 242 (Wyo. 1987).
47Id. at 249 (citation omitted).
48Id. at 250.
49Id.
50705 N.E.2d 606, 611 (Mass. 1999) (citing Rios, 733 P.2d at 244).
51LaFave, Substantive Criminal Law (2d ed. 2005) pocket part s 4.4(c) at 19.
52See supra note 2.
53See supra page 9.
54Our conclusion mirrors that in Stepansky in which the court found that tourism
was
a legitimate state interest warranting jurisdiction over crimes occurring aboard
cruise
ships that traveled to and from Florida, noting that if onboard crimes were not
prosecuted Florida's interests would suffer, and that it was unlikely that
another
jurisdiction would have a sufficient interest to prosecute. 761 So. 2d at 1036.
1In re Air Crash Off Long Island, New York, on July 17, 1996, 209 F.3d 200, 205-
06
(2nd Cir. 2000) (citations omitted).
2207 U.S. 398 (1907).
3Id. at 403.
4213 U.S. 347 (1909).
5Id. at 355.
646 U.S.C.A. app. s s 761-67 (2005).
7In re Air Crash, 209 F.3d at 206.
8498 U.S. 337, 341-42 (1991).
9In re Air Crash, 209 F.3d at 206.
10Id.
11262 U.S. 100 (1923).
12U.S. CONST. amend. XVIII, s 1.
13Cunard, 262 U.S. at 123.
14In re Air Crash, 209 F.3d at 206 (quoting Cunard, 262 U.S. at 123).
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