The Essentials of Living Aboard a Boat

by Mark Nicholas

  One solution to this is to use a service provider that provides a legal address for cruising liveaboards. They provide an address for mail delivery and vehicle registration and are supposedly experts at mail forwarding. I don’t know how these providers will fare in the evolving antiterrorism climate.

  General Requirements

  When we take our homes for a cruise, we are no different than pleasure boaters and are subject to all of the same rules as the rest of the boating community. Many laws and regulations are based on important safety concerns, and responsible boaters are often great advocates for their and others’ compliance with these rules. We all recognize that failing to keep a good watch, overindulgence in alcohol or drugs, lack of extra safety precautions for children, and failure to use proper lights can all easily endanger our lives as well as the lives of our passengers and fellow boaters. Almost daily we hear of a boater who has become endangered because of something that he could have easily prevented.

  While it is your responsibility to learn and know the laws that apply to you, you can be quite certain that there are laws related to the following offenses:

  • Reckless operation of a boat

  • Operating while intoxicated

  • Operating or giving permission to operate an unregistered boat or boat with an expired registration (or an undocumented boat)

  • Failing to properly display any required registration/identification insignia

  • Failing to maintain proper registration identification or present it to boarding officers

  • Operating a boat more than a designated number of days without notifying and possibly registering in a jurisdiction

  • Failing to report a change of address of a registered boat (not always obvious for transient liveaboards)

  • Failing to exhibit lights as required between sunset and sunrise

  • Failing to stop, assist, and give name and address at the scene of a boating accident or incident

  • Failing to obey water markers

  • Operating in an area designated for swimmers or too close to a scuba diver flag

  • Depositing, throwing, or discharging any refuse matter of any kind into certain water (rule varies based on type of refuse and location)

  • Cruising or anchoring in an area prohibited for such activity

  • Failing to maintain required safety gear on board or not utilizing safety gear as required by law

  • Maintaining or transporting illegal contraband

  Although laws and regulations may be issued by different authorities, including the U.S. Congress, the Coast Guard, the Environmental Protection Agency, the Commonwealth of Massachusetts, etc., they may be enforced by multiple agencies including, for instance, the Coast Guard and state and local police, as well as a harbormaster.

  It is rare to find a boater who, having spent any time on the water, has not been boarded and inspected by some enforcement entity at one point or another. Engaging in activities that draw notice or are of higher risk will attract more attention and draw greater scrutiny. I, in my sailboat, have never been boarded but have had the state police pull up alongside and ask me to provide documentation as well as show them various safety gear, including life jackets, flares, and a fire extinguisher. I did and they left. It is unlikely that the authorities would have believed that my boat, with a hull speed of just under seven knots, would ever be used to smuggle anything. Nonetheless, take a tour of the postings in the liveaboard e-mail groups and you will hear reports of stories told by various liveaboards that reflect more difficult experiences, situations in which the authorities conducted armed boardings randomly searching for more than just required safety gear or properly instituted sanitation systems.

  Limitations on Liveaboards

  Marinas have differing views on liveaboards, and impose various policies and restrictions. A marina’s ability to establish its own rules should be championed. Some governments and agencies around the world have taken it upon themselves to come up with their own requirements or limitations for liveaboards, passing rules instructing marinas on what they can and cannot do.

  There are obvious albeit sometimes misguided politics in the passage of many of these rules. For instance, a government that is trying to demonstrate to its constituency a policy that is tough on pollution may target liveaboards, a small, unorganized, and politically weak group. The allegation that liveaboards are major polluters is often rebutted but seldom successfully defended against.

  As an example, the San Francisco Bay is a body of water overseen by the Bay Conservation Development Commission, a state agency. BCDC has passed a rule prohibiting a marina from allocating any more than 10 percent of its total slips to liveaboards. To make matters worse, while BCDC has stated to me that the definition of a liveaboard is a person who has no other residence, many marinas have developed more stringent policies in order to ensure compliance, such as defining a liveaboard as someone who spends, on average, more than two nights per week aboard. If a boater violates this rule, the boater will be asked to depart the marina, whether or not he is in fact living aboard.

  Liveaboards who attempt to skirt these rules have been dubbed “sneak-aboards” and live under the constant risk that they will be without a home port with little or no notice. Some marinas are, to the contrary, extremely lax in their enforcement of these rules. As long as the system remains one of self-enforcement, we will see this wide range of marina compliance, but any change in the enforcement of these limitations will have a dramatic effect on the lives of a large number of liveaboards.

  On the bright side, one example of similar legislation that was successfully rebuked was in the Seattle/Puget Sound region, in which various agencies attempted to pass legislation prohibiting liveaboards from living on certain waters. Don Stonehill organized the Liveaboard Association of Puget Sound and successfully lobbied, sued, and succeeded in preventing the banning. The group now enjoys a good and informative relationship with governmental bodies, and continues to work for the general benefit of boaters nationwide.

  Safety

  Federal as well as state and local laws and rules require that certain safety gear be maintained on board in an accessible and operational condition, and that boats be operated safely in accordance with local requirements as well as responsible behavior. It is incumbent upon you, as a boater and captain of your vessel, to know, understand, and comply with these rules.

  Alcohol and Drugs

  Laws relating to the use of drugs or alcohol, or possession of illegal substances, are generally pretty uniform across many jurisdictions. Those of us who are sharing the water want fellow boaters to conduct themselves in a manner that does not endanger us, our passengers, or our boats.

  Use

  The law related to the use of alcohol aboard a boat was formerly one that required reckless boating as a prerequisite, and the penalties often were quite light. There were many very serious injuries and deaths caused by intoxicated boaters doing some fairly egregious things, and the laws became stricter.

  These days, boating under the influence (BUI) laws exist; they read similarly to driving under the influence (DUI) laws. Just as a sample, the Commonwealth of Virginia prohibits a boat from being operated while under the influence of drugs or alcohol, and presumes that blood alcohol concentrations of 0.08 percent or more constitute being under the influence.

  The penalties for violating the Virginia law include fines of up to $2,500, imprisonment for up to 12 months, revocation of the privilege to operate a boat for up to 3 years, and enrollment in an alcohol safety program. Other states have set more stringent requirements, including tiered penalties for multiple offenses and revocation of vehicle driving privileges for boating violations.

  In addition to these BUI penalties, reckless behavior that causes injury or death to another may also justify a criminal complaint if the actions of the person, intoxicated or not, rise to the level of a criminally negligent activity. Speedboating in a no-wake zone or swimming/
diving area is an example of criminal negligence, and can justify a manslaughter charge (an unintentional murder caused by a grossly reckless act) or significant civil award even if the behavior is merely “reckless” or performed under the influence.

  Possession

  The mere possession of illegal drugs is illegal (again, I’m a rocket scientist). Pay close attention to the gun laws, as well. If you get caught, it doesn’t matter whether the boat is under way or not, since it is the possession that matters. Depending on the item and the amount, as well as the waters and your boating operation, the possession is either a misdemeanor (punishable by a period in jail of less than one year) or a felony (punishable by a period in jail of potentially one year or more); the charge could even rise to the level of drug trafficking or smuggling.

  Search and Seizure

  With all of the above as prelude, let’s turn our attention to search and seizure. The Fourth Amendment to the U.S. Constitution provides that people shall be free from unreasonable searches and seizures, and the Supreme Court has defined this protection as one of many granting a right of privacy to the people. The Fourth Amendment does not prohibit all searches and seizures, but merely the unreasonable ones, and a system has been put in place whereby under most circumstances, probable cause is needed before a search, and a judge is asked to approve the search in advance, issuing what is called a “search warrant.”

  Exceptions to this rule that have been permitted by the Supreme Court include circumstances in which there was a belief of an immediate threat of harm or other life-threatening situation, or where the evidence sought is of a nature allowing it to be easily hidden or removed. These searches are considered “reasonable.” Consequently, motor vehicles are permitted to be searched without a warrant since any evidence that is sought can so easily be driven off and hidden or destroyed. Motor vehicle searches do, however, require probable cause that a crime has been committed. For these cases there is a reduced standard of privacy.

  The Supreme Court, however, has held that law enforcement authorities do not need to have probable cause as a prerequisite for searching boats (and property on boats), regardless of how unreasonable. The Court considered random boardings of boats to be a “limited” intrusion supported by the need to “deter or apprehend smugglers…” One of the Justices who did not agree with the decision was concerned that the Court, for the first time, was approving a “completely random seizure and detention of persons and an entry onto private noncommercial premises by police officers, without any limitations whatever on the officers’ discretion or any safeguards against abuse.” The case is called U.S. v. Villamonte-Marquez (1974).

  The Coast Guard statute recognizes this right of law enforcement. No boat owner has any right of privacy or freedom from interference aboard his boat, and therefore no right to be free from searches and seizures, unreasonable or otherwise. The U.S. law permitting the Coast Guard to search a boat is U.S.C. Title 14, Part 1, Chapter 5, Section 89, which reads in part:

  Sec. 89.—Law enforcement

  (a) The Coast Guard may make inquiries, examinations, inspections, searches, seizures and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws for the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested…if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise…on board of…such vessel, liable to forfeiture or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized [italics mine].

  This law, by its own words, deprives boat owners of any right to resist any inquiry, inspection, examination, or search, provides no safeguards, requires no cause, and, as we shall discuss in the next section, allows the Coast Guard to take the boat for nothing more than a suspicion that a crime might have been committed (i.e., any crime at all might have been committed). The Coast Guard’s written boarding policy also reminds boaters that the boarding team will be armed.

  The problem is compounded for liveaboards, who are now required to open up their homes to inspection, for any reason or no reason at all, and without any need for a showing of cause or restraint.

  It is worth mentioning that boat searches are not a function of current events with the world’s new battle against terrorism, for searches and seizures have been going on for quite a while. The only evident difference between searches prior to the attack on the World Trade Center and those conducted later is that any public support for the proposition that boaters should have some right to privacy has eroded, and searches are now often conducted at gunpoint just like any other military operation.

  Forfeiture

  As if unreasonable and unwarranted searches weren’t enough, all citizens of the United States should be aware that the federal government (as well as state government) is permitted to take away their property, even if no crime is ever shown to have been committed, and even if the person who has lost his or her property is entirely innocent. The laws authorizing the government to take away people’s property are called forfeiture laws. The public has not only tolerated these laws, probably thinking that the government would never take away their property, but has continued to allow their representatives to pass so much legislation in this area that I understand there now to be hundreds of forfeiture laws in the books of federal and state governments. These laws are designed not only to be punitive, but also to raise significant amounts of capital.

  The government can take away your property, whether it be your cash, home, boat, land, business, or any other assets, if it believes that the property was, in any way, used in a crime. These laws were originally intended to dispossess criminals of their ill-gotten gains, such as confiscating property acquired by a drug dealer, but have escalated into many governments taking highly expensive property away from property owners as the result of petty crimes—or even worse, from innocent people as the result of conduct of third parties. The government doesn’t even have to ultimately bring a criminal action, but if it does, even if the person is found not guilty, the property can be kept and either destroyed or sold at auction.

  How about this: What if you catch a fish that is one inch below the legal minimum? It’s a crime, and many states have statutes authorizing the taking of the boat since the boat was used in the commission of a crime. What if a marijuana joint is found on board? What if your Y-valve for sewage discharge is inadvertently left in the wrong position? And no charges ever need to be brought.

  There are horrible stories of real-life forfeitures, including authorities taking a 133-foot, $2.5 million yacht when a trace amount of marijuana was found in a dresser drawer, and a lady who lost her house and property when her son, who was renting her in-law apartment (not even connected to the house) was found to have some marijuana in his possession (no charges were ever filed and she did not even know that her son had ever smoked or possessed marijuana).

  The federal government finally made some amendments to its seizure laws, requiring that the government now has to show that it is more likely than not that a crime was committed (a civil standard, not a criminal one), and it is now easier for an innocent person to recover property. Innocence, however, requires that when a person finds out that illegal conduct has occurred, he or she must contact the authorities immediately. Therefore, every mother who finds out that her child has experimented with drugs in the house is unde
r an obligation to call the authorities right away. If the son is later arrested for drugs, even if the family thought that the child had ceased his activities, the family can have their house taken away.

  Also, even though the federal government now has to show that it is more likely than not that a crime was committed, many states have not reformed their forfeiture laws, and are permitted to take the property for any belief whatsoever.

  Ohio law, for instance, provides that any personal property used or intended for use in the attempt, conspiracy, or commission of any offense can be seized and forfeited to the seizing agency for its use or sale. A boat is subject to forfeiture if the possession of the boat is illegal, or if any “contraband” is found on board. In Ohio, the underlying offense needs to be a felony.

  If you are an innocent owner with no actual knowledge of any crime, you are required to show not only that you did not know, but that you should not have known after a reasonable inquiry that your property was used or could have likely been used in a crime.

  Sanitation

  Many legal issues related to sanitation were discussed in “Safety and Sanitation.” Be aware of the rules in your marina as well as in your cruising waters and know what activities are permitted and prohibited. Some jurisdictions have some pretty significant penalties for illegally dumping sewage or other refuse; many jurisdictions and no-discharge zones ban gray-water discharge as well.

  International Law

  Cruising liveaboards who depart their home waters to explore other parts of the world need to be aware of the laws in the jurisdiction where they are headed. First and foremost, be sure to have passports for every single one of your passengers and crew, as well as any other registration and documentation information that might be required both by your home port as well as your destinations. In addition, you and all of your passengers and crew might need a health certification and proof of specific vaccinations.