CAO 98-30
,
m
CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
M E'M 0 RAN 0 U M
To:
SERGIO RODRIGUEZ
City Manager
cc
Mayra Diaz-Buttacavoli
Assistant City Manager
From:
November 23, 1998
MURRAY H. DUBBIrjf AI "If),,//?
City Attorney,.. - A ~ ~ ~.
RobertDixon~
Deputy City Attorney
Date:
Subject:
What Agency or Agencies are responsible for Supplying rescue services on
the waters surrounding Miami Beach?
C.A.O. #98-30
This C.A.O. is submitted in response to the above question submitted in your C.M.O.
Number 4-10/98. The Question is not within the usual and intended purpose of a C.A.O.;
however, if the question was intended to solicit information regarding the applicable law which
empower rescue and other services with regard to the navigable waters surrounding Miami
Beach, the information is as follows:
The federal government, by virtue of its constitutional power to regulate interstate and
foreign commerce, has paramount power over the navigable waters which surround Miami
Beach, and the regulatory authority of the state is subject to federal control. Thus, though the
title to the shoal waters ofBiscayne bay and the inland waterways may be in the state, and under
its control, such ownership and control are subject to the control of the United States government
for purposes of navigation, which includes rescue on those waters. On the other hand, federal
control of our navigable waters is limited in its scope and leaves much of the authority of the
state, county and municipality untouched. Assuming the absence of federal legislation on this
subject, the state, county and municipality has full regulatory power over navigable waters within
its limits and may legislate even in the sphere of navigation itself, in a proper case.
Page 1
~,
Title 14, Part I, section 2, of the United States Code Annotated provides in material part:
The Coast Guard shall enforce or assist in the enforcement of all
applicable Federal laws on, under, and over the high seas and
waters subject to the jurisdiction of the United States; shall engage
in maritime air surveillance or interdiction to enforce or assist in
the enforcement of the laws of the United States; shall administer
laws and promulgate and enforce regulations for the promotion of
safety of life and property on and under the high seas and waters
subject to the jurisdiction of the United States covering all matters
not specifically delegated by law to some other executive
department. . .
However, you should note that there is no affirmative duty on the part of the United
States Coast Guard to rescue or furnish assistance to a vessel in distress; the decision to
undertake or abandon is discretionaryl. Reading the words of the statue as they are written the
Coast Guard's power to render rescue or fire fighting services within the context of most cases is
a permissive function. The statute says the Coast Guard may perform these functions. The
permissiveness of the Coast Guard's function was recognized in the case of United States v. De
Vane, 306 F.2d 182, 186 (5th Cir. 1962). .
Pursuant to Title 14, Part I, section 88 of the United States Code Annotated, in order to
render aid to distressed persons, vessels and aircraft on and under the high seas and on and
under the waters over which the United States has jurisdiction and in order to render aid to
persons and property imperiled by flood, the Coast Guard may (1) perform any and all acts
necessary to rescue and aid persons and protect and save property; (2) take charge of and
protect all property saved from marine or aircraft disasters, or floods, at which the Coast Guard is
present, until such property is claimed by persons legally authorized to received it or until
otherwise disposed of in accordance with the law or application regulations, and care for bodies
of those who may have perished in such catastrophes; (3) furnish clothing, food, lodging,
medicines and other necessary supplies and services succored by the Coast Guard; and (4)
destroy or tow into port sunken or floating dangers to navigation.
It is a statutory function of the Coast Guard to establish and operate rescue facilities.
Congress has also provided that the Coast Guard may render aid to persons and protect and save
property at any time and at any place at which Coast Guard Facilities and personnel are available
and can be effectively utilized. But this legislation falls short of creating a governmental duty of
affmnative action owed to a person or vessel in distress.
lSee Foltling v. Kaevando, 324 F.Supp. 585 (S.D.Tex. 1971)
Page 2
'"
Pursuant to Title 14 Part I, section 89, the Coast Guard may make inquires, examinations,
inspections, searches, seizures and arrests upon the high seas and waters over which the United
States has jurisdiction, for the prevention, detection and suppression of violations of laws of the
United States. .
From a practical aspect, there is no agency, per se, that is solely responsible for rescue
and other services that aid and protect persons and property in the navigable waters that
surround Miami Beach. This responsibility is shared by all agencies: the Coast Guard, the
Miami-Dade Marine Patrol, the Florida Marine Patrol, the Miami Beach Marine Patrol and the
Miami Beach Fire Rescue. Usually, the determining factor is whatever agency is closest to the
incident is dispatched, but that is not always the case; for example, another factor is the local of
the incident, to wit, the bay or inland waterway vs. open water.
Other applicable law can be found in:
Florida Statute 327.02 is entitled "Vessels: Registration and Safety." The statute sets out
the responsibilities of the Division of Law Enforcement of the department of Environmental
Protection. The Florida Division of Law Enforcement has jurisdiction over the "Florida
Intracoastal Waterway" and all waters of this state, which means the navigable waters of the
Uriited States within the territorial limits of this state and the marginal sea adjacent to the state
and the high seas when navigated as part of a journey or ride to or from the shore of this state and
all the inland lakes, rivers and canals under the jurisdiction of this state.
Florida Statute 327.40 provides that the waterways in Florida, unmarked by the Coast
Guard, which need marking for safety or navigation purposes shall be marked under the Uniform
Safety and Navigation System adopted by the advisory panel of state officials to the Merchant
Marine Council of the United States Coast Guard.
Florida Statute 316.003, is an statute relating to boating safety and emergency
responses; also referred to as the Kelly Johnson Act.
As to the actual operating procedures of each agency, this office would advise contacting
each agency to determine the number, type and frequency that personnel and equipment operate
in the navigable waters adjacent to the City of Miami Beach and the procedures for the
dispatching that equipment and personnel for rescue services.
Page 3