USS Constitution with battle ensign

This is how we do it in Boston. Credit: US Navy.

The case of the day is United States v. Alarcon (S.D.N.Y. 2015). The US Coast Guard intercepted a small boat on the high seas approximately 280 miles from the coast of Ecuador. It found 600 kg of cocaine on board and charged the three Ecuadoran men on the boat, Javier Joaquin Alarcon Prado, Luis Armando Valencia Bautista, and Hector Valencia Bautista, with drug offenses under the Maritime Drug Law Enforcement Act. The defendants moved to dismiss the indictment.

USS Lassen with flag

How To Fly a Flag. Credit: US Navy

There were a bunch of issues in the case, some of them interesting. I am going to focus on just one: was the ship a “vessel without nationality,” as required for the MDLEA to apply? Under the statute, one of the key requirements is that there must be a claim of registry or nationality. One way to claim nationality is by “flying its nation’s ensign or flag.” The ship was not actually flying a flag, but there was a small image or decal of the Ecuadoran flag on the side of the boat’s hull. Is that enough?

No, said the judge. Flying a flag, he held, requires at least “a display sufficiently prominent as to put a United States official on notice of another country’s interests.” The small Ecuadoran flag on the side of the boat didn’t meet the standard.