346 



The unacceptability of section 201(c) becomes even stronger when 

 one undertakes an analysis of section 205 (Forfeiture). Under section 

 205(a) the vessel, "its tackle, apparel, furniture, appurtenances, cargo, 

 and stores shall be subject to forfeiture." According to a variety of 

 legal authorities, this language creates a property right in the Govern- 

 ment immediately upon the commission of the illegal act. Further, the 

 rights of other persons cannot be respected, although already existing, 

 or subsequently obtained, no matter how innocently acquired. An ex- 

 tremely harsh penalty — the loss of a $2 or $3 million fishing vessel, 

 along with its valuable gear and cargo — merely for pursuing and in- 

 terfering with a school of porpoise to see if any tuna are about. 



Please refer to the following cases on this point : United States v. 

 Grundy and Thomhurgh, 3 Cranch 338; 2 L. Ed. 459; 1960 Bags of 

 Coffee. 8 Cranch 398, confirmed in Caldwell v. United States, 8 Howard 

 306; 12 L. Ed. 1115; The JAMES G. SWAN; D.C.D. Wash., N.D. 

 (1896) 77 F 473-t75 ; 600 tons of Iron Ore (D.C.D.N.J. 1881) 9 F 595- 

 601. Also see 25 C.J.S. 259, at page 571. 



It is our preliminary view that the proposed bills, by their very 

 terms and language, give rise to a need for considerable examination, 

 analysis, and study. We would like to withhold further comment on 

 other specific points raised by the proposed bills at this time, because 

 we believe it necessary to explain to the subcommittee the techniques 

 we have developed in using porpoise to capture the tuna after we have 

 detected them to be associated with a porpoise school. It is in this area 

 where the proposed bills in defining; the critical terms of "take" or 

 "taking" or "taken" have a substantially harmful impact on the tuna 

 fishery. 



With me is Mr. Joe Medina, master and managing owner of the tuna 

 vessel Queen Mary. He has been engaged in the fishery practically all 

 of his life. His father was one of the early pioneers and leaders of the 

 tuna fleet. Mr. Medina is available for the purpose of explaining how 

 the vc sols in the tuna fleet use porpoise to capture tuna. He will fur- 

 ther explain the many techniques, skills, and equipment fishermen have 

 developed throiigh the years in working with porpoise to capture tuna. 

 He will discuss in detail the recent technique that he and his first cousin, 

 Harold Medina, captain and managing owner of the Keni 31, have 

 developed in working with porpoise schools. 



In recent years, a great deal of interest has been generated about 

 how the U.S. fleet uses porpoise to capture tuna. This has been particu- 

 larly true with respect to the curiosity developed by our competitors, 

 the foreign tuna fishermen. Although we have had many scientists 

 aboard our vessels, ranging from employees of the Federal Govern- 

 ment to those of the Inter- American Tropical Tuna Commission, no 

 coordinated program of study dealing with the porpoises and their 

 association with the tunas has been developed. Various articles, re- 

 ports, and papers have been published on the subject since 1966. To 

 our knowledge, no specialized report concerning porpoise has been 

 prepared by the Inter-American Tropical Tuna Commission. 



In the past 2 years, we have been working with the National Marine 

 Fisheries Service in attempting to work out more information about 

 the porpoise and in developing new ideas concerning the assistance to 

 be given porpoise to leave the captured tuna. Necessarily, insufficient 

 data has been developed in this period of time by the fleet concerning 



