33 boxes of cigars on board, cont’d

by Walter Olson on May 20, 2013

We reported last month on the federal seizure of the 46-foot sailboat Janice Ann. Now an update: in a letter to petitioner Jeffrey Southworth, the U.S. Customs and Border Protection division of the Department of Homeland Security has offered to return the boat in exchange for a hold-harmless agreement sparing Customs from any demand for attorneys’ fees, damages or other relief. If the deal is not accepted within 30 days, “administrative forfeiture proceedings will be initiated by publishing a notice of seizure and intent to forfeit for 30 consecutive days at www.forfeiture.gov. After that time, the government acquires full title to the seized property.”

The CBP letter is here (& Sailing Scuttlebutt).

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CBP still employing dubious ‘Hold Harmless Agreements’
05.24.13 at 4:16 pm

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1 Wally Moran 05.20.13 at 2:14 pm

Isn’t that nice of the CBP? In effect, they’re saying “Hey, we’ve held your boat for four months, caused you untold amounts of worry and expense, and guess what? We were wrong. But, because we’re really nice guys, you can have your boat back IF you promise not to strike back at us – you know, the way you would be allowed to do if we were in private industry rather than government.
And if you don’t promise, we’re going to take your boat just to teach you the lesson.”
Tell me American – how do you LIVE with these jackbooted thugs?

2 Leafs004 05.20.13 at 5:38 pm

Wally,

Well, at least the owner is getting his boat back, and I suspect he’ll agree to the terms of the CPB and call it a lesson learned. Not fair, but I wouldn’t need the aggravation to stand up on a principle that’s going to cost me a lot more money with not much potential upside. I’d love the owner to sue the CPB, heck, I’d even donate a small amount to his legal fund, and see how the CPB fare in court. The continuing problem there is even if the owner wins, the settlement comes from taxpayer dollars. The CPB individuals responsible wouldn’t get more than a slap on the wrist – if that.

I don’t know where you’re from, but it’s easy to forget what goes on in other countries. The real jackbooted thugs there would simply take your boat. If you squaked too loud, you’d be welcome to tell your story from Davey Jones locker.

3 Bill 05.20.13 at 7:07 pm

Wow.

Administration arrogance reaches a new height.

Looks like this is another government operation that requires severe pruning.

4 Black Death 05.20.13 at 7:40 pm

And many thought piracy only happened off the coast of Africa.

5 rxc 05.21.13 at 3:57 am

They can do these sorts of “inspections” anywhere in the US, not just on the “high seas”. It is the outgrowth of the progressive war-on-drugs, from a Supreme Court decision back in 1983 – United States v. Villamonte-Marquez, 462 US 579 – about a search of a boat that was anchored in a river, 18 miles inland, and one guy on board seemed a bit unresponsive to a question about his welfare, so they took a look and found bales of marijuana on board. As a result, because boats can move (unlike cars, of course), boaters now have no expectation of privacy at all. The inspectors can even drill holes wherever they want to including the bottom of the hull while the boat is in the water, as part of their “inspections”.

Here in Europe they board boats all the time to do “fiscal” inspections. I fly the US flag and am considered a particularly juicy target (inspected 5 times, including 3 special searches for me by French, Spanish, and Irish customs). But I have some Brit friends who are also “controlled” on the UK-flagged vessel, especially in Spain. You have to carry a full dossier of paper around with you all the time to avoid any “interesting discussions” about your tax status. It has gotten to the point that we are now moving from France, because of all the hassel.

6 rxc 05.21.13 at 4:00 am

One last comment – it would be interesting to see what state the boat is in after being in govt storage for a few months. They can be quite destructive when searching for evil contraband, and don’t have much interest in putting the mess back together, “French Connection” notwithstanding.

7 Dyspeptic Curmudgeon 05.21.13 at 9:30 pm

He should take the deal, get the boat back, and *THEN* sue them personally for the damages, legal fees etc. They have admitted he did nothing illegal, so forcing him to sign an agreement to get his own property back was extortion. He’s probably got a Blivens claim and other claims.

Of course he should not attempt to clear customs in that district ever again!

8 Scott Alexander Meiner 05.24.13 at 5:01 pm

Sadly, this is long running CBP policy. They admitted as much in Anoushiravani v. Fishel, (No. CV 04-212-MO, 2004 WL 1630240 (D. Or. July 19, 2004):

“On January 28, Ms. Fishel notified plaintiff’s attorney that after consultation with Customs lawyers, “we are returning [the exempt property] to your client without requiring that your client sign a Hold Harmless Agreement.” In conversations initiated by plaintiff’s attorney whereby plaintiff threatened to challenge the constitutionality of Customs requiring a hold harmless agreement before releasing exempt property, both Ms. Fishel, on January 28, and Ms. Stilwell, on February 5, told plaintiff’s attorney the Portland Custom’s office “would continue its policy of requesting that owners sign a hold harmless agreement as a condition of return of their exempt property.””

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