Goss, Robert B.

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Maryland Journal of International LawVolume 2 | Issue 2 Article 11Law of the Sea - Shipping - State Regulation of Bays- Rhode Island's Statute Regulating Pilotage ofBlock Island Sound is Within 46 U.S.C. §211(1970) Warner v. DunlapRobert B. GossFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mjilPart of the International Law Commons, and the International Trade CommonsThis Article is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Journal ofInternational Law by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationRobert B. Goss, Law of the Sea - Shipping - State Regulation of Bays - Rhode Island's Statute Regulating Pilotage of Block Island Sound isWithin 46 U.S.C. §211 (1970) Warner v. Dunlap , 2 Md. J. Int'l L. 245 (1977).Available at: http://digitalcommons.law.umaryland.edu/mjil/vol2/iss2/11ToPIcAL SuRvEYLAW OF THE SEA - SHIPPING - STATE REGULATIONOF BAYS - RHODE ISLAND'S STATUTE REGULATINGPILOTAGE OF BLOCK ISLAND SOUND IS WITHIN46 U.S.C. § 211 (1970).Warner v. Dunlap, 532 F.2d 767 (1st Cir. 1976)The state of Rhode Island passed a statute' requiring foreignand American vessels engaged in international trade to utilizeships' pilots licensed by the state Pilotage Commission whentraversing Block Island Sound. Plaintiffs, Connecticut-licensedships' pilots, who passed through the Sound when guiding shipsinto Connecticut ports, challenged the state law as beyond thescope of 46 U.S.C. § 211 (1970). This statute authorizes thestates to regulate the use of pilots "in the bays, inlets, rivers,harbors, and ports of the United States ....The plaintiffs contended that Block Island Sound was nota "bay" within the meaning of the federal statute. As the statutefailed to define the term "bay," the parties relied on the definitionset forth in the Convention on the Territorial Sea and the Con-tiguous Zone,3 an international treaty ratified by the UnitedStates' Senate in 1961. This definition of the word "bay" hadbeen accepted by the United States Supreme Court in UnitedStates v. California.4The treaty stated that a bay "is a well-marked indentationwhose penetration is in such proportion to the width of its mouthas to contain landlocked waters and constitute more than a merecurvature of the coast."5 The treaty applied a "semi-circle test"for determining the sufficiency of the water area enclosed. Underthis test in order for a body of water to qualify as a bay, it musthave at least as much surface area within its natural boundariesand a closing line drawn across its mouth as within a semi-circlehaving a diameter equal to the length of the closing line.6 Thetreaty also stated that if a coastline indentation had more thanone mouth due to the presence of islands, "the semi-circle test1. R.I. GEN. LAWS, § 46-9.1-1 et seq. (Supp. 1974).2. 46 U.S.C. § 211 (1970).3. Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958[1961] 15 U.S.T. 1606, T.I.A.S. No. 5639.4. 381 U.S. 139 (1965).5. Convention, supra n.3, art. 7, § 3.6. Id.THE INTERNATIONAL TRADE LAw JOURNALshall be drawn on a line as long as the sum total of the lengthsof the lines across the different mouths."7The Rhode Island statute did not define the western bound-ary of Block Island Sound. Consequently, whether or not thatbody of water was a !'bay" or part of a "bay" under the semi-circle test was dependent upon where the court established thewestern boundary. The plaintiffs suggested two different bounda-ries which the Rhode Island legislature might have intended todescribe the western limits of Block Island Sound. When thearea within each western boundary and the eastern and southernboundaries established by the Rhode Island statute was calcu-lated, neither configuration showed Block Island Sound to be a"bay" under the semi-circle test.The district court had found that it was consonant with theterms of the treaty to treat Block Island Sound as part of alarger body of inland water which included Long Island Sound.The court established the western boundary for this body ofwater at the East River, between Manhattan and Long Island.Applying the semi-circle test to the area enclosed by this bound-ary and the boundaries established by the state statute, the courtfound that the Long Island - Block Island Sound combinationconstituted a "bay" within the meaning of the treaty. It there-fore held that Block Island Sound, as part of the larger body ofwater, was a "bay," and that Rhode Island was authorized by46 U.S.C. § 211 (1970) to regulate ships' pilots in these waters.Alternatively, the district court found that Block Island Soundwas a "historic bay" which was subject to state regulation withoutapplying the treaty's tests.The United States Court of Appeals for the First Circuitupheld the district court's application of the semi-circle test tothe Long Island Sound - Block Island Sound combination. Thecourt rejected plaintiffs' argument that Block Island Sound wasnot a well-defined indentation and not a "bay." The court citedSupreme Court dicta in United States v. Maine,8 describing LongIsland Sound as inland water, rather than open sea. The courtdeclined to rule on the historic bay question.The court of appeals further found that it was not necessaryfor ships to enter or leave Rhode Island ports in order for thestate to regulate their pilots; mere passage through Rhode Island7. Id.8. 420 U.S. 515, 517 n.1 (1975).TopIcAL SURVEYwaters was sufficient. The court noted that the state had aninterest in promoting navigational safety and protecting the en-vironmental quality of its coastline. These objectives could beachieved by regulating pilotage of vessels through its waters.Finally, the court rejected plaintiffs' argument that under theSubmerged Lands Act of 19539 Rhode Island's jurisdiction didnot extend beyond the waters within three miles of its coastline.The court pointed out that a state could regulate pilotage andother activities in areas beyond the three mile limit since theextent of state regulations and state territorial boundaries wereseparate issues.Robert B. Goss9. 43 U.S.C. § 1301 et seq. (1970).

Law of the Sea - Shipping - State Regulation of Bays - Rhode Island\u27s Statute Regulating Pilotage of Block Island Sound is Within 46 U.S.C.  §211 (1970) Warner v. Dunlap

Law of the Sea - Shipping - State Regulation of Bays - Rhode Island\u27s Statute Regulating Pilotage of Block Island Sound is Within 46 U.S.C. §211 (1970) Warner v. Dunlap

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