Feds sue fishermen for taking buoy ‘hostage’

Is it finders keepers or a kind of hostage-taking when a fisherman “rescues” an oceanographic buoy that was adrift and won’t return it to the U.S. Geological Survey until the government agency pays him for his trouble?

Daniel Sherer, 39, who owns the 30-foot commercial fishboat Irish with partner Patrick Anderson, was trapping Pacific hagfish in January — hagfish resemble eels and are prized in South Korea for the dinner table — when he came across the approximately 4-foot-diameter buoy floating five miles off Monterey, California, says David Sherer, a semiretired lawyer and his son Daniel’s original legal counsel in the case.

Daniel Sherer turned his boat around to get a closer look, fouled his running gear in the buoy’s mooring cables and hauled the scientific gear aboard, his father says. Sherer says his son didn’t know exactly what he had. For all he knew it could have been a submarine detection buoy. “You think they’re going to tell us that’s what it is?” Sherer asks. “No.” Whatever it was, it was a hazard to navigation, as the lawyer’s son discovered when his boat became snarled in the cable.

The fisherman slowly motored to Moss Landing Harbor — a major commercial fishing port on Monterey Bay — so as not to damage Irish. He called the telephone number stenciled on the side of the buoy and left a message saying that he’d found the scientific gear, taken possession of it and it was on his boat in Moss Landing Harbor.

He told the agency it would have to pay for the buoy’s return. That demand amounted to “holding the equipment as a de facto hostage,” Department of Interior assistant field solicitor Karen D. Glasgow said in response to a letter from lawyer Sherer that offered to sell the buoy back to the USGS for $45,000 — a little more than 10 percent of the $400,000 he estimated it to be worth.

The U.S. Attorney’s Office, in a brief filed March 31 in U.S. District Court in San Francisco against the boat’s two owners and their company, A&S Fishing, said the buoy — Scientific Mooring MS1 — had been anchored to the bottom at Monterey Canyon at a depth of about 300 meters. It was part of a seven-buoy array tethered at various depths to measure turbidity currents — their velocity and sediment concentrations — from October 2015 to April 2016.

The government complaint says that on or about Jan. 15 the buoy broke loose from its mooring in a storm and floated to the surface. Two days later its homing beacon alerted the USGS that the buoy was in Moss Landing Harbor. Two days after that Daniel Sherer notified the USGS that the buoy was in his possession and he wanted money for its return.

David Sherer maintains that as soon the buoy tore loose from its anchor and surfaced it was anyone’s to claim as their own. “Attached to the bottom, it belongs to the government,” he says. “Floating on the surface, it’s finders keepers under salvage law.”

Sherer argues his son now owns the buoy and that the government owes his son compensation for seven or eight lost fishing days, for possible damage to Irish’s transom when the captain hoisted the buoy aboard and to the transmission when the cable fouled the running gear, and for the cost of a diver to free the cables from the boat.

The government disagrees. “Your client has no claim or right to possession of the said equipment, and, indeed, your client’s continued possession will cause damages to the United States,” Glasgow wrote. “The United States therefore demands the immediate return of its equipment to the USGS.” She said if Sherer thinks his son has a legal claim to remuneration, he should pursue it in an “appropriate” way.

The matter remained a stalemate until the U.S. attorney filed suit asking the court to order Sherer’s son to give the buoy back to the government and pay as much as $115,000 for damage to it — its instruments, data and water samples — and for delaying an important research program. The program involved multiple universities and several countries, and was supposed to resume in April, when the USGS had planned to recover the buoy, download data and redeploy it.

“It’s a salvage case, if anything,” says New York maritime lawyer James Mercante of the firm Rubin, Fiorella & Friedman. The government did not abandon the buoy, he says. It was part of an ongoing research project. Daniel Sherer should have surrendered it to the USGS in a timely fashion, and if he thought the government owed him remuneration for recovering the buoy, he should have asked for it. If the sides couldn’t agree on an amount, he could go to arbitration or, if necessary, to court for a decision.

Instead of returning the buoy and making a claim against the government for a salvage award, the fishermen are now defendants in a federal lawsuit seeking an award for damage to the buoy and to the oceanographic project. “They’ve got a tiger by the tail, unfortunately,” says Mercante.

He notes, too, that under Article 4, Section 3, Clause 2 of the U.S. Constitution, only Congress has the right to dispose of government property, and the courts have held that the federal government does not abandon property unless it says it has.

In short, the fishermen are on the wrong side of the law on this one. Mercante notes that it usually is best to seek the advice of a maritime lawyer in a maritime case. “If you have a foot problem, you don’t go to an eye doctor,” he says.

At last report, Daniel Sherer had released his father as his lawyer — which David Sherer confirmed — and was asking for $13,000 in compensation. He did not respond to an email seeking comment. The U.S. Attorney’s Office says it does not comment on pending cases.

This article originally appeared in the August 2016 issue.