US embassy cable - 85STATE317062

UNCLAS STATE 317062 
 
E.O. 12356:  N/A 
TAGS: MARR, PBTS, XX 
SUBJECT:    STATUS OF MILITARY SEALIFT COMMAND VESSELS 
 
REF:  STATE 106685 (110517Z MAY 77) 
 
1.  REFERENCE (A) SUMMARIZED U.S. GOVERNMENT POLICY AND 
PRACTICE REGARDING SOVEREIGN IMMUNITY STATUS OF VESSELS 
EMPLOYED BY THE U.S. NAVY'S MILITARY SEALIFT COMMAND 
(MSC).  RECENT DEVELOPMENTS IN THE DEPARTMENT OF 
DEFENSE STRATEGIC SEALIFT PROGRAM NECESSITATE A 
REVISION OF THE POLICIES PROMULGATED IN REFERENCE (A), 
WHICH IS HEREBY CANCELLED. 
 
2.  THE VESSELS OPERATED BY THE MSC ARE THOSE OWNED BY 
THE USG, INCLUDING THOSE IN THE NATIONAL DEFENSE 
RESERVE FLEET; THOSE BAREBOAT CHARTERED TO THE USG; AND 
THOSE TIME OR VOYAGE CHARTERED TO THE USG.  SHIPS 
DESIGNATED UNITED STATES NAVAL SHIPS (USNS) ARE EITHER 
OWNED BY OR BAREBOAT CHARTERED TO THE US NAVY.  MSC 
BAREBOAT CHARTERED VESSELS ARE PRIVATELY OWNED AND ARE 
MANNED EITHER BY U.S. GOVERNMENT CIVIL SERVICE CREWS OR 
BY CONTRACTOR EMPLOYEES.  THE PHYSICAL APPEARANCE OF 
BAREBOAT CHARTERED SHIPS, EITHER BY PAINTING OR BY 
STACK MARKINGS, IS USUALLY THE SAME AS U.S. GOVERNMENT 
OWNED USNS.  PRIVATELY OWNED AND OPERATED VESSELS 
CHARTERED BY MSC FOR A PERIOD OF TIME OR FOR A 
SPECIFIED VOYAGE OR VOYAGES ARE USUALLY MANNED BY 
CIVILIAN PRIVATE SECTOR CREWS EMPLOYED BY A COMMERCIAL 
OPERATOR, UNDER THE DIRECTION OF THE UNITED STATES AND 
USED EXCLUSIVELY TO TRANSPORT U.S. GOVERNMENT 
NON-COMMERCIAL CARGO.  THEY DO NOT, HOWEVER, BEAR 
DISTINCTIVE U.S. GOVERNMENT MARKINGS. 
 
3.  UNDER CUSTOMARY INTERNATIONAL LAW, ALL VESSELS 
OWNED OR OPERATED BY A STATE AND USED ON GOVERNMENT 
NON-COMMERCIAL SERVICE ARE ENTITLED TO SOVEREIGN 
IMMUNITY.  THIS MEANS SUCH VESSELS ARE, INTER ALIA, 
IMMUNE FROM ARREST AND SEARCH, WHETHER IN FOREIGN 
INTERNAL OR TERRITORIAL WATERS OR ON THE HIGH SEAS; 
IMMUNE FROM ALL FOREIGN TAXATION; EXEMPT FROM ANY 
FOREIGN STATE REGULATION REQUIRING FLYING THE FLAG OF 
SUCH FOREIGN STATE EITHER IN ITS PORTS OR WHILE PASSING 
THROUGH ITS TERRITORIAL SEA; AND ENTITLED TO EXCLUSIVE 
CONTROL OVER PERSONS ON BOARD SUCH VESSELS WITH RESPECT 
TO ACTS PERFORMED ON BOARD .  THESE SHIPS, HOWEVER, ARE 
EXPECTED TO COMPLY VOLUNTARILY WITH THE LAWS OF THE 
HOST STATE WITH REGARD TO ORDER IN THE PORTS, CASTING 
ANCHOR, SANITATION AND QUARANTINE, ETC.  ALL VESSELS IN 
THE SERVICE OF MSC, WHETHER USG OWNED, BAREBOAT 
CHARTERED, TIME OR VOYAGE CHARTERED, ARE IN EXCLUSIVE 
GOVERNMENT NON-COMMERCIAL SERVICE.  EACH OF THESE 
VESSELS IS ENTITLED TO FULL SOVEREIGN IMMUNITY. 
 
4.  IN THE PAST, FULL SOVEREIGN IMMUNITY HAS BEEN 
CLAIMED (AND HAS GENERALLY BEEN ACCORDED) FOR USNS 
VESSELS ONLY.  AS A MATTER OF POLICY THE USG DID NOT 
CLAIM FULL SOVEREIGN IMMUNE STATUS FOR TIME AND VOYAGE 
CHARTERED VESSELS ALTHOUGH AS A JURIDICAL MATTER OUR 
POSITION HAS BEEN THAT SUCH VESSELS ARE ENTITLED TO 
FULL IMMUNITY.  THIS WAS DONE PRINCIPALLY TO AVOID 
NUMEROUS REQUESTS FOR DIPLOMATIC CLEARANCE AND TO AVOID 
CONFUSION BY FOREIGN STATES WHEN THOSE VESSELS ENTERED 
THEIR PORTS.  WITH FEW EXCEPTIONS, IMMUNITIES CLAIMED 
FOR SUCH VESSELS HAVE BEEN LIMITED TO FREEDOM FROM 
ARREST AND IMMUNITY FROM TAXATION, AND HAVE BEEN 
ARRANGED ON A BILATERAL BASIS. 
 
5.  FOR THE LAST FEW YEARS, MSC HAS BEEN BRINGING ON 
LINE THE AFLOAT PREPOSITIONING FORCE (APF), MOST OF 
WHICH IS TIME CHARTERED.  IN THE CASE OF THE APF, THE 
POLICY NOTED ABOVE IS NOT SATISFACTORY.  APF VESSELS 
ARE LOADED ENTIRELY WITH COMBAT EQUIPMENT, FUEL AND 
COMBAT SUPPORT SUPPLIES.  THE CONTENTS OF THEIR CARGO 
IS THEREFORE SENSITIVE AND CANNOT BE MADE AVAILABLE FOR 
INSPECTION BY FOREIGN AUTHORITIES.  APF SHIPS ARE 
EXPECTED TO CALL ONLY AT A LIMITED NUMBER OF PORTS AND 
NOT TO MAKE PORT CALLS AS FREQUENTLY AS, E.G., TANKERS 
OR GENERAL PURPOSE DRY CARGO CARRIERS.  IN VIEW OF THE 
UNIQUE NATURE OF THE AFLOAT PREPOSITIONING FORCE, IT IS 
THE POLICY OF THE USG THAT ALL AFLOAT PREPOSITIONING 
FORCE VESSELS, INCLUDING TIME CHARTERED VESSELS, MUST 
BE AFFORDED THE FULL SOVEREIGN PRIVILEGES AND 
IMMUNITIES CURRENTLY CLAIMED FOR AND ACCORDED USNS 
VESSELS.  WITH RESPECT TO MSC VOYAGE CHARTERED VESSELS 
AND MSC TIME CHARTERED VESSELS NOT A PART OF THE AFLOAT 
PREPOSITIONING FORCE, USG GENERAL POLICY IS TO CONTINUE 
TO CLAIM IMMUNITY ONLY FROM ARREST AND TAXATION. 
CIRCUMSTANCES MAY ARISE WHICH NECESSITATE ASSERTIONS OF 
SOVEREIGN IMMUNITY FOR TIME OR VOYAGE CHARTERED VESSELS 
IN ADDITION TO THOSE IN THE APF.  WHEN SUCH CASES HAVE 
ARISEN IN THE PAST, SPECIFIC GUIDANCE HAS BEEN PROVIDED 
AT THE TIME.  THIS PROCEDURE WILL CONTINUE. 
 
6.  REQUEST ALL POSTS TAKE APPROPRIATE ACTION TO INSURE 
HOST GOVERNMENTS ARE AWARE, WHEN APPROPRIATE, OF THE 
STATUS OF SOVEREIGN IMMUNE VESSELS AND ASSIST IN 
ASSURING RECOGNITION OF THIS STATUS.  POSTS SHOULD BE 
AWARE THAT AFLOAT PREPOSITIONING FORCE TIME CHARTERED 
MSC SHIPS WILL REQUIRE DIPLOMATIC CLEARANCE FOR PORT 
CALLS IN FOREIGN COUNTRIES.  THE REQUEST FOR DIPLOMATIC 
CLEARANCE WILL EXPLICITLY IDENTIFY THESE VESSELS AS 
AFLOAT PREPOSITIONING FORCE SHIPS OF MSC.  THEY MAY NOT 
BE PAINTED DISTINCTIVELY OR BEAR THE MSC LOGO.  IT IS 
ESSENTIAL FOR POSTS TO IMPRESS UPON THEIR HOST 
GOVERNMENTS THE STATUS OF SUCH SHIPS IN THE EVENT OF 
PORT CALLS OR OTHER OPERATIONS IN HOST GOVERNMENT 
TERRITORIAL SEAS AND INTERNAL WATERS.  THE LIST OF 
SHIPS CURRENTLY IN THE APF IS AVAILABLE FROM THE CHIEF 
OF NAVAL OPERATIONS (OP-42). 
 
 
ARMACOST