Lost at Sea: an Argument for Seaman Status for Fisheries Observers
| Publication year | 1995 |
| Citation | Vol. 18 No. 03 |
I. Introduction
The commercial fishing industry has historically been subject to a host of conservation-based regulations.(fn2) Enforcement of these regulations, however, has proven problematic. Once the commercial fishing fleet was out to sea, there was no reliable way to verify that the regulations were followed.
As commercial fishing took an increasing toll on the marine ecosystem, conservationists and fishermen alike began pressuring lawmakers to provide a reliable check on the fishing industry.(fn3) In response, Congress created a new class of maritime employee: the observer.(fn4) An observer aboard a commercial fishing vessel would gather scientific data, monitor the fishing catch and bycatch(fn5) rate, and ensure that the vessel complied with the conservation regulations.
However, creation of this new class of maritime employee created a new problem. As observers were placed aboard commercial fishing vessels, they were exposed to the same perils and hazards of the sea which plagued traditional seamen.(fn6) Predictably, observers were injured and turned to the courts for a remedy. Courts, however, were not equipped to deal with this new class of maritime employee because Congress had not denned the observer's legal status.(fn7) Observers did not clearly fit into any of the existing maritime classifications,(fn8) and there were questions as to whether observers were entitled to the special protections traditionally afforded to certain maritime employees.(fn9)
This Comment addresses the question of how observers should be classified within the structures of maritime law. Part II discusses the importance of the fisheries observer program, as well as the federal authority that created it. Part III discusses the risks and remedies afforded to those who work upon the high seas and presents the policy reasons for granting observers seaman status. Part IV discusses the judicial debate surrounding this issue and presents the legal reasons for granting observers seaman status. Part V discusses how the reauthorization of the Magnuson Act provides an opportunity to clearly define the observer's legal status. Finally, Part VI concludes that because observers are exposed to the same high rate of injury which plagues traditional seamen, and because observers satisfy the Supreme Court's test for seaman status,(fn10) observers should be provided the full panoply of remedies available to these traditional maritime employees.
II. Emergence of the Fisheries Observer Program
Although the fluctuation of fishstocks is not a new phenomenon, never before have so many commonplace species been fished so perilously close to oblivion.(fn12) Since 1989, when the world's marine fish catch peaked at eighty-six million metric tons, stocks of fish have rapidly plummeted.(fn13) Four of the world's seventeen major fisheries are commercially depleted, and nine more are in serious decline.(fn14) Currently, most commercial fish species are classified as "depleted," "fully exploited," or "overexploited" which, according to the United Nations, could lead to potentially "disastrous social and economic consequences."(fn15)
Accurate estimates of the fishing mortality rate are essential to managing populations of desirable species.(fn16) In the past, fishery managers were forced to rely on vessel operators for these estimates.(fn17) This data was notoriously poor.(fn18) Because certain species offish were not typically harvested for consumption, they were not brought to port to be counted.(fn19) Without a reliable check on the commercial fishing industry, there was little incentive for vessel owners to accurately monitor and report their catch rates. Consequently, large numbers of undesirable catch were routinely dumped overboard.(fn20) Even today, an alarming twenty-five percent of all fish caught in the world's oceans is wasted.(fn21) This translates into an estimated average of twenty-seven million metric tons of fish thrown overboard by commercial fishermen per year.(fn22)
Though the problems of self-monitoring are obvious, the resulting environmental impact is not so obvious. Because ocean fish are not declared extinct as are other species,(fn23) the rapid depletion of fisheries may not be noticed until irreversible damage has occurred. This is why the creation of the fisheries observer program was so crucial. Observers aboard commercial fishing vessels now provide the consistent monitoring and reliable data essential to the proper management of fisheries resources.
The data collected by observers is used by the National Marine Fisheries Service (NMFS) to ensure that conservation goals are being met.(fn24) Primary uses of the data include: (1) estimating the bycatch rates of prohibited species; (2) monitoring individual vessel performance and compliance with bycatch rate standards; (3) assessing the status and health of groundfish stocks; (4) investigating predator-prey relationships; (5) determining incidental takes of marine mammals and analyzing fishery-marine mammal interactions; (6) appraising impacts on fisheries and stocks of proposed actions by other federal or state agencies; and (7) assisting fishery development activities.(fn25)
Environmentalists, commercial fishermen, and regional fishery council members agree that scientific observers are desperately needed to monitor bycatch problems and to improve the quality of data provided to NMFS.(fn26) Without observers, such monitoring would not be possible.
B.
As a consequence of increased fishing pressure and the inadequacy of the fishery conservation schemes promulgated by Congress, certain i stocks of fish were overfished to the point where their survival was threatened.(fn28) In 1973, foreign fishing alone took seventy percent of the commercial catch within domestic waters and overharvested sixteen species.(fn29) To remedy this situation, Congress passed the Magnuson Fishery Conservation and Management Act(fn30) (the "Magnuson Act") to end foreign domination and energi2e the U.S. fishing industry.(fn31) In enacting the legislation, Congress declared, "[a] national program for the conservation and management of the fishery resources of the United States is necessary to prevent overfishing, to rebuild overfished stocks, to insure conservation, and to realize the full potential of the Nation's fishery resources."(fn32)
A primary goal of the Magnuson Act was to immediately begin conserving and managing the fishery resources found off the coasts of the United States by establishing a 200 mile fishery conservation zone (the Exclusive Economic Zone ("EEZ"))(fn33) within which the United States would assume exclusive fishery management authority.(fn34) The federal government delegated to each coastal state the right to determine the allowable catch and exploitation of fisheries within its EEZ and the duty to ensure proper conservation and management of living resources.(fn35) A general requirement, however, was that populations of harvestable fisheries be maintained and restored at levels to produce the "maximum sustainable yield" (the level of fishing at which the maximum tonnage of the stock can be harvested without stock depletion).(fn36)
A concurrent goal of the Magnuson Act was to provide special protection to particular domestic fisheries.(fn37) The Act established eight Regional Fishery Management Councils ("Councils") to prepare, monitor and revise fishery management plans to maintain the optimum yield from each domestic fishery.(fn38) The Councils were required to "prepare and submit to the Secretary [of Commerce] a fishery management plan with respect to each fishery within its geographical area of authority that requires conservation and management."(fn39)
The Magnuson Act thus mandated observer monitoring in two areas: (1) foreign fishing within the EEZ(fn40) and (2) certain fishing within the North Pacific Fisheries.(fn41) The Secretary of Commerce, acting through NMFS, implements observer coverage of foreign vessels within the EEZ, while the North Pacific Fisheries Management Council(fn42) implements observer coverage of vessels within the North Pacific Fisheries.
1. Foreign Fishing Within the Exclusive Economic Zone
Under the Magnuson Act, no foreign fishing vessel is permitted within the United States'...
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