July 28, 1975
Page 25389
By Mr. MUSKIE:
S. 2193. A bill to amend the Fish and Wildlife Act of 1956 in order to authorize the Secretary of Commerce to make loans to US fishermen to cover the costs of damages to their vessels and gear by foreign vessels. Referred to the Committee on Commerce.
FISHING VESSEL CLAIMS OF 1975
Mr. MUSKIE. Mr. President, I am introducing legislation to amend the Fish and Wildlife Act of 1956 to expedite the payment of claims by U.S. fishermen for damage caused by foreign vessels.
Specifically, this legislation would require the Federal Government within 30 days to assume financial responsibility for losses to U.S. fishermen caused by foreign vessels, pending international negotiations to recover the loss from the foreign government involved. In cases where there is reason to believe that damage or destruction did in fact occur as a result of foreign fishing activities, documented claims would be paid by the Secretary of Commerce in the form of a non-interest-bearing loan from the Fisheries Loan Fund set up under the Fish and Wildlife Act of 1956.
Congress created this fund expressly to finance or refinance the cost of purchasing, constructing, equipping, maintaining, or operating commercial fishing vessels or gear. The loan would be made in an amount equal to the replacement value of the damaged or destroyed property and the market value of the fish lost on board or in the damaged gear. After the Secretary of Commerce has completed an investigation of the incident — an investigation which must be completed within 6 months after the loan application has been filed — the loan would be converted to a grant if it were found that the American fisherman was not at fault.
If, however, the Secretary found that the damage or destruction resulted from a natural cause such as a storm, the non-interest-bearing loan would be converted into a loan with interest at a rate set by the Secretary.
If the American fisherman were found to be at fault because of negligent or fraudulent activity, the Secretary would require the immediate repayment of the loan at an interest rate he deemed appropriate; and the fisherman would be subject to criminal prosecution. Government responsibility would be retroactive to January 1, 1972, since most of the serious damage done to American fishermen's gear has been done during the past 3 years.
Mr. President, I would like to add that this legislation is not only simple in its intent and construction, but if enacted, it could be administered in a straightforward and relatively inexpensive manner. With the enactment of this measure, I would not, for example, foresee the need to expand the bureaucracy or to set up any new administrative organization to handle claims filed by U.S. fishermen against foreign vessels. I believe the National Marine Fisheries Service, as presently structured, could handle any increased demands made upon it as a result of this legislation.
Furthermore, the few million dollars currently in the fisheries loan fund should provide more than enough money to take care of any immediate claims filed pursuant to this measure. So it will not be necessary for Congress to authorize any new moneys for the implementation of this bill.
Mr. President, identical legislation was approved by the House and the Senate late last Congress as an amendment to the maritime authorization bill, which was vetoed by the President. In announcing his veto, President Ford objected specifically to the provision for fishermen
claims recovery. As the author of this provision, I was particularly distressed at the President's action.
The primary objection raised by President Ford in his veto message was that "It would be difficult to establish responsibility for any damage caused." This difficulty is precisely the reason I introduced the amendment. Moreover, the President implied in his veto message that existing international settlement procedures are adequate when in fact they are not.
For many years, fishermen off both the east and west coasts have suffered serious and often disastrous economic losses as a result of damage to their gear caused by foreign fishermen. There are international procedures for making claims against foreign vessels which damage or destroy fishing gear. But current procedures are slow, cumbersome, and seldom effective, with the result that most American fishermen do not even bother going through the laborious process of filling out the necessary claims forms. And in a given case, even if the claims process is eventually successful, the individual fisherman with a median income of $8,000 per year is forced to carry the financial burden of between $2,000 and $4,000 for several months or longer.
Mr. President, this legislation is designed to get the fisherman back on the job while the international negotiations are going on by providing him with immediate compensation.
Last summer, there was a series of incidents of damage to the fixed gear of fishermen off the Maine coast. The destruction was wanton and apparently deliberate. Strong evidence indicated that West German ships were responsible, yet our fishermen were left with only the most uncertain claims. Under existing procedures, the most likely result of recovery efforts is that nothing will happen.
Mr. President, as things stand today, most American fishermen do not regard the existing procedures as adequate: They feel that filing claims is hardly worth the time, money, and trouble since there is such a high probability that pursuit through the claims process will prove fruitless.
It is bad enough that we are allowing foreign fishermen to deplete our offshore stocks and to threaten the health of the U.S. fishing industry. We must not continue to allow foreign fishing vessels to add to that injury by destroying the gear of American fishermen.
It is imperative that the Federal Governmant initiate new measures to reform the existing claims process. The bill I am offering today — providing the individual fisherman with the capital he needs to get back in business while the Government negotiates with the responsible foreign governments for reimbursement — offers, I feel, a reasonable approach to this problem. I urge my colleagues to support this legislation.
Mr. President, I ask unanimous consent that a section-by-section analysis and the legislation be printed in the RECORD.
There being no objection, the bill and analysis were ordered to be printed in the RECORD, as follows:
S. 2193
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Fishing vessels Claims Act of 1975."
Sec. 2. Section 4 of the Fish and Wildlife Act of 1956 (16 U.S.C. 742e; 70 Stet. 1121), as amended, is further amended by adding the following new subsection:
"(f) (1) The Secretary of Commerce is authorized, under such terms and conditions as he may prescribe by regulation to use funds appropriated under this section to compensate owners and operators whose fishing vessels or gear have been destroyed or damaged by the actions of foreign fishing vessels operating in waters superjacent to the Continental Shelf of the United States as defined in the Convention on the Continental Shelf.
"(2) Upon receipt of an application filed by an owner or operator pursuant to this subsectien after the effective date of this subsection by the owner or operator of any vessel documented or certificated under the laws of the United States as a commercial fishing vessel and after determination by the Secretary that there is reason to believe that such vessel or its gear was destroyed or damaged while under the control of such owner or operator in waters superjacent to the Continental Shelf of the United States by the actions of a vessel (including crew) of a foreign nation, the Secretary shall, as soon as practicable but not later than thirty days after receipt of an application, make a non-interest-bearing loan to such owner or operator from the fisheries loan fund created under subsection (c) of this section. Any such loan, as determined by the Secretary shall be in an amount equal to the replacement value of the damaged or destroyed property and the market value of fish, if any, onboard such vessel and within such gear which are lost or spoiled as the result of such damage or destruction. Any such loan shall–
"(A) be conditional upon the owner or operator of such damaged or destroyed property assigning to the Secretary of Commerce any such rights of such owner or operator to recover for such damages;
"(B) be subject to other requirements of this section with respect to loan which are not inconsistent with the subsection; and
"(C) be subject to other terms and conditions which the Secretary determines necessary for the purposes of this subsection.
"(3) The Secretary of Commerce shall, within one hundred and eighty days of receipt of a loan application, investigate each incident as a result of which a loan is made pursuant to this subsection and–
"(A) if he determines in any such case that the destruction or damage was caused solely by a vessel (including crew) or a foreign nation, he shall cancel repayment of such loan and refund any principal paid thereon prior to such cancellation and seek recovery from such foreign nation;
"(B) if he determines that the damage or destruction was not caused solely by a vessel (including crew) of a foreign nation or solely by the negligence or intentional actions of the owner or operator of the vessel, he shall require such owner or operator to repay such loan at a rate of interest determined by him, pursuant to subsection (b) of this section, which rate shall be retroactive to the date the loan was originally made; or
"(C) if he determines that the damage or destruction was caused solely by the negligence or intentional actions of the owner or operator, he shall require the immediate repayment of such loan at a rate of interest determined by him, pursuant to subsection (b) of this section, which rate shall be retroactive to the date the loan was originally made.
(4) The Secretary of Commerce and the Secretary of State shall, with the assistance of the Attorney General, take steps to collect any claim assigned to him under this subsection from any foreign nation involved. Amounts collected on any such claim shall be deposited in the fisheries loan fund.
"(5) This subsection shall apply with respect to damages or destruction or vessels or gear occurring on or after January 1, 1972,"
EXPLANATION OF FISHING VESSELS CLAIMS ACT Of 1975
DESCRIPTION
This measure establishes a special loan program to expedite the payment of compensation to U.S. fishermen whose vessels or gear are damaged or destroyed as a result of foreign fishing activities on the U.S. Continental Shelf. It adds a new subsection to section 4 of the Fish and Wildlife Act of 1956 (16 U.S.C. 742c; 70 Stat. 1121) which created a more general loan program for financing or refinancing the cost of purchasing, constructing, and equipping, maintaining, repairing or operating commercial fishing vessels or gear.
It is the intent of the sponsors of this bill that the "fisheries loan fund" provided for in subsection (c) of section 4 be the source of funds for the loans made pursuant to this amendment. Currently, the fund contains $4,000,000. However, because of past administrative difficulties the Administration has imposed a moratorium on the use of this loan program, although these difficulties may soon be resolved. Since the purposes of this bill do not involve past difficulties with the general loan program and since it is tied to a compensation program which will keep the fund replenished, this moratorium should not apply to the program created by this measure. The funds to be used should not exceed $250,000 per year.
Paragraph (2) of the new subsection outlines the procedures and states the basic conditions of the loan/compensation program. These procedures begin with an application by a fisherman claiming to have had his vessel or gear either damaged or destroyed by the actions of a foreign vessel or its crew. After receiving the application, but not more than 30 days after it is flied, the Secretary of Commerce determines whether there is reason to believe that damage or destruction did in fact occur as a result of foreign fishing activities. To establish a prima facie case, a fisherman should submit the following: (1) a copy of the vessel's log showing the location of the vessel and the location, quantity, and type of gear alleged to be lost, damaged, or destroyed; (2) a statement by an appropriate government official (e.g. someone from the U.S. Coast Guard) that foreign vessels were known to be in the area at the approximate time the gear was lost, damaged, or destroyed; and (3) an affidavit of the owner or operator of the vessel that, to the best al his knowledge, the damage or destruction of the gear or vessel was not caused by (a) his negligence or intentional acts; (b) natural causes; or (c) other U.S. fishing vessels, and that he was not operating his vessel or employing his gear in violation of any applicable laws or regulation. To knowingly falsify such statements will subject the applicant to the penalties contained in 18 U.S.C. 1001 relating to false statements.
After being satisfied that any fisherman has a bona fide case according to the above guidelines, the Secretary is to make a non-interest-bearing loan to each such fisherman from the fisheries loan fund. The loan would essentially cover "out-of-pocket" losses of the vessel owner. It would be made in an amount equal to the replacement value of the damaged or destroyed property and the market value of fish proved to be onboard a damaged or destroyed vessel or within, lost, damaged or destroyed fishing gear.
The loan will be made subject to the following conditions: (1) assignment to the Secretary of Commerce of any right to recover for damages caused by foreign fishing activities; (2) the other requirement of section 4 relating to loans to the extent they are not inconsistent with the purpose of this bill (e.g. no other source of assistance, such as private insurance or bank loans, are reasonably available) ; and any other conditions determined by the Secretary to be necessary.
As soon as he receives an application, the Secretary must begin a thorough investigation of the incident alleged to have taken place. Although this investigation may be completed before a loan is made (which is unlikely), it must be completed within six months after the loan compensation application is filed. In this time frame it is believed an adequate investigation can be efficiently completed.
If the Secretary finds that the damage or destruction was indeed the result of foreign fishing activities, he is required to cancel repayment of the loan made and to seek recovery from the foreign nation involved. If, however, despite the fisherman's truthful sworn statement, the Secretary finds that the damage or destruction was caused by natural events (storms, waves, etc.) the non-interest bearing loan is to be converted into one with interest at a rate determined appropriate by the Secretary. In addition, if the fisherman is at fault because of negligence or intentional actions, the Secretary is to require the immediate repayment of the loan with interest.
Paragraph (4) directs and authorizes the Secretaries of State and Commerce, with the help of the Attorney General if need be, to seek recovery of damages from the foreign nation whose fishermen are found to be at fault.
Paragraph (5) states that this amendment is retroactive to January 1, 1972.