Cutters and (K)notty

In 2001, a fellow named Roddcliffe Mcphee was convicted in federal court in of conspiracy to possess with intent to distribute 100 kilograms or more of marijuana. Mcphee ended up pleading guilty and was sentenced to nearly 5 years in prison, but reserved his right to appeal one issue arising from his case. As the federal appeals court eventually explained, in May, 2001, the United States Coast Guard Cutters Bear and Tampa were conducting surveillance in the Caribbean between Cuba and the Bahamas. They spotted what the court referred to as a “go-fast” vessel (don’t you hate that technical terminology?) named the Notty, which belonged to Mcphee. When the Coast Guard told the Notty to “avast” or “heave to” or “stop” in boat- speak, the Notty instead led them on a merry chase for about half an hour, ignoring even some warning shots. During the chase, the Coast Guard crews observed “packages” being thrown overboard from the Notty. Eventually, the Notty gave up. Mcphee and two co- defendants claimed Bahamian nationality and that the Notty was a Bahamian vessel, but the Coast Guard couldn’t confirm this. So it deemed the vessel “stateless” — sort of like a pirate ship — and arrested Mcphee and his crew. The Coast Guard eventually recovered almost 100 bales of marijuana from the water. Collectively, they weighed over a ton which . . . let’s see . . . yes, that’s more than 100 kilos. Given that evidence, Mcphee had to resort to a rather technical defense, namely, that the Notty was not a “vessel subject to the jurisdiction of the United States.” His argument depended on whether his boat was seized in international waters (where the U. S. Coast Guard would have jurisdiction) or within Bahamian waters (where the U. S. does not). And that argument, in turn, hinged on the vessel having been intercepted within 12 miles of Saint Vincent Rock, which Mcphee argued was within Bahamian waters and, therefore, made his capture and the seizure of his (former) cargo illegal. As the court explained, the case “turns entirely on whether Saint Vincent Rock . . . is a ‘rock’ or an ‘ island’ for the purposes of determining Bahamian territorial waters. If is a Bahamian ‘ island’ . . . then the Notty was within Bahamian territorial waters . . .; however, if it is a ‘rock,’ then the Notty was in international waters . . . . Both sides agree that this determination must be made in accordance with the definition of ‘ island’ . . . in the 1993 . . . Archipelagic Act.” Wait . . . the “Archipelagic Act”? Still, strange as that term is, the, um, legal authority to which the court turned next was far stranger. The court dropped in a helpful footnote that explained: “We note in passing that for some purposes, the label is not altogether satisfying. Thus, for example, in the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same time.

See Paul Simon and Art Garfunkel, I am a Rock, on Sounds of Silence (Columbia 1966) (‘A winter’s day, in a deep and dark December. I am alone, gazing from my window, to the streets below, on a freshly fallen silent shroud of snow. I am a rock, I am an island. I’ve built walls, a fortress deep and mighty, that none may penetrate. I have no need of friendship, friendship causes pain. It’s laughter and it’s loving I disdain. I am a rock, I am an island. Don’t talk of love. Well I’ve heard the word before. It’s sleeping in my memory. I won’t disturb the slumber of feelings that have died. If I never loved, I never would have cried. I am a rock, I am an island. I have my books and my poetry to protect me. I am shielded in my armor. Hiding in my room, safe within my womb, I touch no one and no one touches me. I am a rock, I am an island. And a rock feels no pain. And an island never cries.’). Of course, neither Simon nor Garfunkel has been identified as a nautical expert.” And of course, no one ever suggested that lines like “I have no need of friendship, friendship causes pain” or “If I’d never loved, I never would have cried” have much to do with international jurisdiction, either — but the court included the entire song anyway. Perhaps unsurprisingly, the court of appeal ruled against Mcphee — while giving fans of “I am a Rock” a handy place to find its lyrics.