When arguing (or teaching) issues of the MDLEA, we tend to over-think much of the statute’s language, largely due to the seemingly expansive breadth and extraterritorial application of it. However, the question of whether a vessel is “flying” a flag in accordance with the MDLEA (and international law) is an easy one to answer. Luckily, there are not many cases that have addressed this issue, and most of the courts that have all come to the same conclusion: a flag must be “hoisted in the air” to establish a claim of nationality or registry under the MDLEA. See generally United States v. Obando, 891 F.3d 929 (11th Cir. 2018); see also United States v. Bautista Ortiz, 808 F. App’x 984, 988 n.1 (11th Cir. 2020).
The Eleventh Circuit is the only appellant level court to directly address this issue in United States v. Obando, 891 F.3d 929, 933 (11th Cir. 2018). There, the Eleventh Circuit stated that the MDLEA “provides three exclusive methods for the master or individual in charge to make a ‘claim[]’” of nationality, and that those three methods “include[] only”:
(1) possession on board the vessel and production of documents evidencing the vessel’s nationality as provided in article 5 of the 1958 Convention on the High Seas;
(2) flying its nation’s ensign or flag; or
(3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.
Obando, 891 F.3d 929, 933 (11th Cir. 2018) (quoting 46 U.S.C. § 70502(e)). The court ruled that “flying” your nation’s flag requires that the flag be “hoisted in the air”. Id. at 938. In coming to this conclusion the court held that a painted flag affixed to the side of a vessel is not a “flying” flag, reasoning that the ordinary meaning of the word “flying” requires “a flag to be capable of freely moving in the air.” Id. at 934. The court stated the text of the MDLEA and other federal statues indicate that “‘[f]lying’ refers to a particular method of displaying a flag, and the [MDLEA] uses this specific word instead of the more general term ‘displaying.’” Id. at 935. Finally, the court concluded that, “[b]ecause a painted flag does not fly,” a flag painted on the side of a vessel does not qualify as a claim of registry for a vessel. Id. at 931.
To my knowledge only one other court has indicated that flying your nation’s flag as a method to claim nationality can be achieved by simply displaying it somewhere on your vessel. In United States v. Prado, 143 F. Supp. 3d 94 (S.D.N.Y. 2015), vacated, 933 F.3d 121 (2d Cir. 2019), a district court in the Southern District of New York stated, without citing any precedent, that “the vessel must put a reasonable United States official on notice that the issues of comity and international relations to which the statute is addressed are implicated by any interference with the vessel. Thus, one of the specified alternative ways of doing so—i.e., “flying [a] nation’s ensign or flag”—must at a minimum refer to a display sufficiently prominent as to put a United States official on notice of another country’s interests.” Prado, 143 F. Supp. 3d at 100-101. Under this reasoning, “prominently” displaying your nation’s flag on the side of a vessel could evidence a claim of nationality or registration.1It should be noted that the SDNY declined to adopt the government’s argument “that a piece of fabric must wave in the air.” Rather, it explained that the phrase “‘flying a nation’s ensign or flag’ … at a minimum refer[s] to a display sufficiently prominent as to put a United States official on notice of another country’s interests” before it concluded that the particular emblem in question was “not remotely large or prominent enough.” Ultimately, the Second Circuit did not have to address the court’s analysis/ruling because the case was vacated on other grounds, but before doing so, the Second Circuit noted that the district court “cited no authority for such a size or prominence requirement” and that it “need not pass on the correctness of that ruling as a matter of law because nothing turns on it.” United States v. Prado, 933 F.3d 121, 131–32 (2d Cir. 2019).
The Eleventh Circuit in Obando directly disagreed with the SDNY district court’s analysis in Prado, stating that allowing for “static ‘emblems’” to form the basis of a claim of registry under § 70502(e) would require a fact-intensive inquiry “into the size, location, and intended meaning of such markings[]” and that “[a] flag hoisted in the air avoids these questions and unambiguously asserts nationality.” Obando, 891 F.3d at 937. So, if you are going to fly a flag as your claim to nationality on your vessel, make sure it’s hoisted in the air and not simply painted on the side!
- 1It should be noted that the SDNY declined to adopt the government’s argument “that a piece of fabric must wave in the air.” Rather, it explained that the phrase “‘flying a nation’s ensign or flag’ … at a minimum refer[s] to a display sufficiently prominent as to put a United States official on notice of another country’s interests” before it concluded that the particular emblem in question was “not remotely large or prominent enough.”