Prison Ships

1. By Foreign Countries

Prison ships have been used, most famously, to house prisoners of war (“POWs”). 21 During the American Revolutionary War (1775–83), for example, the British operated prison ships in Charleston, New York, Norfolk, and Savannah, as well as off the coast of Florida and in Canada. 22 While 6,800 Americans were killed in battle, 11,500 perished on these ships, 23 with most of the deaths occurring in New York. 24 Since 1908, a large memorial, known as the Prison Ship Martyrs’ Monument, has occupied a central spot in Brooklyn’s Fort Greene Park. 25

During the War of 1812, the British again used prison ships. In one notable incident, the British seized the MAGNET, an American vessel, and brought her to Halifax, Nova Scotia. 26 In the ensuing prize proceedings, 27 the British government asked that the MAGNET be released, even though she had not yet been adjudged prize, so that she could be used as a POW ship. 28 The government also asked that a cache of small arms and a cargo of wood be released, even though they too had not yet been declared prize, insisting that they also were urgently needed. 29

After observing that the government’s requests were highly unusual, 30 the court granted the arms and wood petitions, explaining that the war had created exigent circumstances that permitted it to deviate from its normal procedure. 31 It then turned to the MAGNET and reached the same conclusion:

A third petition is from Vice-Admiral Sawyer, likewise stating “that in consequence of the United States having declared war, it has been necessary for His Majesty’s service that a prison ship should be provided for the safe keeping of prisoners of war, who [have] now become very numerous, that a ship called the Magnet, which is now held in the custody of this Court as a prize taken from the Americans is a ship well calculated for a prison ship, and that His Majesty’s service requires the said ship to be immediately employed for that purpose, there being no other suitable vessel to be now obtained. He therefore prays that the said ship may be delivered over to such officers as the said vice-admiral shall appoint to take charge of her for his majesty’s use, upon the same terms as proposed in the other petition[s].”

This petition depends upon the same principles [as the previous two petitions and therefore is granted]. 32

Closer to home, the British used POW ships in numerous conflicts, including the Napoleonic Wars (1803–15), 33 the Second Boer War (1899–1902), 34 World War I (1914–18), 35 and World War II (1939–45). 36

In the Russian Civil War (1918–19), POW ships known as “death barges” were used by both sides. 37 During World War II, POW ships were used by both the Germans 38 and the Japanese. 39 Because they did not display Red Cross-markings, Allied forces often inadvertently bombed these vessels, causing thousands of casualties. 40 In 1949, the Geneva Convention was revised to prohibit POWs from being detained on ships except in emergencies. 41

2. By the United States

The United States historically has not kept POWs on ships. Exceptions include the War of 1812 42 and the Civil War (1861–65). 43 In both World War I and World War II, thousands of POWs were transported by ship to the United States and placed in prison camps located throughout the country. 44 During the War on Terror (2001 to the present), frequent allegations have been made that the United States is using Navy ships to hold and interrogate suspected terrorists. 45

1. By Foreign Countries

In peace time, prison ships have been used when land-based facilities have been full or otherwise unavailable. In 1775, for example, when the British suddenly were unable to transport convicts to the United States because of the American Revolutionary War, the government decided to use ships as a temporary solution:

The war with America brought an abrupt halt to the steady stream of convict ships that had been heading to its shores. What did not abate, however, was the flow of convicts sentenced to transportation by the courts, and a crisis in prison overcrowding soon began to loom.

The immediate, and supposedly short-term, solution was to turn two of the hulks of old battleships berthed on the Thames at Woolwich into floating prisons for 100 inmates. At the same time, two pieces of parliamentary legislation were prepared which proposed longer-term remedies for the problem. The first, the Criminal Law Act of 1776, aimed to extend the use of shipboard prisons. It recommended that transportation be replaced by a period of hard labour lasting between three and ten years. . . . Although the Act made no explicit mention of shipboard prisons, the particular form of hard labour that it proposed—“removing sand, soil, and gravel from, and cleansing the River Thames”—makes it clear that was where its intent lay. Despite some objections, such as the possible nuisance caused to nearby residents, and concerns about the security of the vessels, the bill was passed in May 1776. . . .

In August 1776, the contract for supplying and managing the new prison ships, or hulks as they became known, was awarded to Duncan Campbell—one of the merchants who had previously been engaged in transporting convicts to America. Campbell’s initial contract was to provide a ship to house 120 prisoners for each of which he was to receive £32 a year. The first vessel he provided, the Justitia, was joined the following year by the Tayloe, the two then accommodating 240 prisoners. The Tayloe was soon replaced by the much larger Censor.

The ships were moored in the middle of the Thames at Woolwich Warren. . . . During the day, prisoners worked at dredging the river or providing labour for building works. At night they were crammed below decks, originally in beds, and then in pairs on low wooden platforms. An experiment in using hammocks for beds was abandoned after it became apparent how difficult these were to use while wearing chains. . . .

Conditions on the hulks were dire, with ships sometimes housing up to 700 convicts. . . . In the first twenty years of their operation, the hulks received around 8,000 prisoners, of which almost a quarter died on board. As well as diseases, such as goal-fever, tuberculosis, cholera and scurvy, severe depression appears to have been common. . . .

By 1788 [when transportation resumed following the establishment of a new penal colony at Botany Bay in Australia], the [hulks] included the Stanislaus at Woolwich, the Dunkirk based at Plymouth, the Lion at Gosport, and the Ceres and La Fortunee at Langstone Harbour. 46

Even with transportation again available, Great Britain continued to use the prison hulks until 1857, when the Parliamentary act authorizing them 47 was not renewed. 48 Under a different statute passed in 1823, 49 British colonies were permitted to have their own prison hulks, and several availed themselves of this option, including, most notably, Bermuda (1824–63) and Gibraltar (1842–75). 50

Charles Dickens’ 1861 novel Great Expectations, set in 1812, opens with a prisoner (Abel Magwitch) escaping from a Thames hulk and swimming to shore. 51 When he is later captured, Philip “Pip” Pirrip (the orphan who is the story’s main character) describes Magwitch’s forced return to the vessel:

The something that I had noticed before clicked in the man’s throat again, and he turned his back. The boat had returned, and his guard[s] were ready, so we followed him to the landing-place, made of rough stakes and stones, and saw him put into the boat, which was rowed by a crew of convicts like himself. No one appeared glad to see him, or sorry to see him, or spoke a word, except that somebody called as if to dogs, “Give way, you!” which was the signal for the dip of the oars. By the light of the torches we saw the black Hulk lying out a little way from the mud of the shore, like a wicked Noah’s ark; cribbed, and barred, and anchored by massive rusty chains, the prison-ship was ironed like the prisoners.

We saw the boat go alongside, and we saw him taken up the side and disappear. Then the ends of the torches were flung hissing into the water, and went out, as if it were all over with him. 52

That the hulks were much feared is made clear by a story recounted in a remembrance of Baron Ellenborough, the Lord Chief Justice of King’s Bench (1802–18):

Some magistrate of Middlesex had sent a young man on board a tender, which lay off the Nore to receive impressed men, for the heinous crimes of sitting in his cart on the high road, and of insolence when summoned before them, the legal penalty for the first offence being a fine of ten shillings. He was kept on board the prison-ship seven days, and brought his action for false imprisonment. Lord Ellenborough summed up strongly in favour of exemplary damages. “This is a case that calls for ample justice. A young man, in driving his cart, commits an offence for which he is fineable, instead of which he is imprisoned without any authority of law, and afterwards put on board a prison-ship; there is nothing a magistrate ought to guard so much against as the playing with the liberty of the subject. There can be no excuse for the conduct of the defendant. The plaintiff is entitled to ample justice from a jury of his country; you will therefore, gentlemen, take the case into consideration and give him those damages that you think will make him ample compensation for the injuries he has sustained.” The jury very properly awarded 500l. 53

Prison hulks were not limited to Great Britain. In France, for example, prisoners were used as “galley rowers” (“galley slaves”) from the 16th to the 18th centuries. 54 When changes in naval warfare made such ships obsolete, they were turned into prison hulks, primarily at Toulon. 55

In modern times, Great Britain repeatedly has used ships to detain political prisoners in Northern Ireland: 1920s (ARGENTA), 56 1940s (AL RAWDAH), 57 and 1970s (MAIDSTONE). 58 Other countries have treated their political prisoners in a similar fashion.

Shortly after becoming Cuba’s president in 1925, for example, General Gerardo Machado began using the MÁXIMO GÓMEZ to “disappear” his political enemies. 59 In 1932, Brazil imprisoned the leaders of the failed Constitutionalist Revolution aboard the steamship PEDRO I. 60 Following Spain’s July 1936 Military Uprising, many of the coup’s participants were held aboard the steamer URUGUAY. 61 During the Cuban Revolution (1959), some Batista sympathizers found themselves locked aboard the SAN PASQUAL, a hulk off the coast of Cayo Las Brujas (Witches Island). 62 Additional examples can be found in Argentina (1959), 63 Uruguay (1968), 64 Cambodia (1970), 65 Chile (1973–80), 66 and the Philippines (1987–88). 67

In 1929, Japan turned the former warship MUSASHI into a prison ship for juvenile delinquents. 68 More conventionally, from 1997 to 2005 Great Britain used a ship called the WEARE to relieve prison overcrowding in England. 69 In 2010, however, when the British government raised the idea of doing so again, the public reacted with a storm of protest. 70

2. By the United States

In this country, there have been three major peacetime uses of prison ships: in California (1849–54); in California and Maine (1902–16); and in New York City (1987 to present). 71

Following the discovery of gold at Sutter’s Mill in 1848, California experienced a sudden influx of 300,000 people hoping to get rich. 72 As a result, local authorities were forced to use prison ships until more permanent jails could be built. In Stockton, for example, a grounded vessel called the SUSANNAH was pressed into service:

In Mormon channel, near the Center-street bridge, two French-built vessels went aground in 1849. One of these, named the Susannah, was a brig of about 250 tons, built of oak.

“It was used as a prison-ship in ’49,” said L. Basilio, in answer to the inquiries of a reporter, “as we had no jail in the city then. I was working as a blacksmith’s hand in a shop, as the corner of Hunter and Market streets, for $8 a day. One of my duties was to rivet shackles on the legs of prisoners. The stage[coach] brought in the prisoners from the mountains late at night, and my work had, therefore, to be done at about 10 o’clock. An old plank, nailed across with cleats, led up to the deck of the Susannah. The rigging and masts were all gone. The man in charge of the prison was a German, who lived on the flooring just below the deck. The men were kept below on the lower floor, to which a cleated plank descended from a hatch-hole. Every night I went down that plank with my tools and shackles, and the German stood guard at the hole above, armed with pistols and guns enough to kill the entire lot of prisoners if they made a demonstration. I stood the work for a while, shackling the men and chaining them to beams which supported the upper flooring, and then I threw up the job as too dangerous.”

The Susannah was used as a prison-ship for only a short time. It afterward became the resort of criminals, who made it a lodging-house and place of refuge. About the year 1854 it was therefore burned to the water’s edge. 73

Similarly, in San Francisco a ship called the EUPHEMIA was turned into a floating prison:

San Francisco’s first jail was an outdated and flimsy log structure built around 1846 at Clay and Stockton streets. . . .

The Town Council of San Francisco[, realizing] how insecure their jail was, . . . began to search for a new jail. A special committee was appointed to either purchase or lease a new building for the jail. A particular dilemma faced the committee; the inflated gold prices of San Francisco had driven up the costs of building, hence rents were also high. A possible solution, and a thrifty one, was the use of an abandoned ship for a building. Gold fever had also stricken the crews of the vessels that had brought the argonauts to California, and hundreds of ships lay empty along the water front. The solution for the special committee’s dilemma was at hand; they purchased a ship for use as San Francisco’s new jail. . . .

At the October 8, 1849 meeting of the Town Council of San Francisco, the special committee reported “the purchase of the brig Euphemia for the purpose of a prison ship, and, on motion, the report of the committee was adopted and the purchase approved.” The former owner of the Euphemia, incidentally, was Town Council member William Heath Davis. The purchase price: three thousand, five hundred dollars. 74

In Sacramento, a ship called the LA GRANGE was used for the same purpose:

[In 1850], the City of Sacramento docked . . . the La Grange, at the foot of I-Street in downtown to house people with criminal convictions and mental illnesses. A grand jury report provided a window into the terrible conditions aboard the La Grange:

[The jail is] considered insecure and, for close confinement, unhealthy. There are at present only 16 cells, each about 4½ by 8 feet in size, divided by board partitions, and occupying a space in the center of the brig of about 25 by 40 feet. . . . Each of these cells contain from two to three prisoners. . . . 75

The state was no more prepared than its cities for the sudden population boom. As a result, when California opened its first state prison in 1851, it used a ship known as the WABAN. 76 After six months anchored off Angel Island in San Francisco Bay, the WABAN moved to a nearby spit of land called San Quentin:

The Dec. 20, 1851 edition of the Daily Alta California chronicles the ship’s first foray as a prison vessel.

“The bark Waban, with about forty state prisoners, was towed over to Angel Island yesterday by the steam tug Firefly, Capt. Grifflin. We learn the prisoners are intended to work in the stone quarry, under the direction and supervision of our efficient Sheriff, Jack Hays,” the newspaper reported at the time.

The state [soon] opted for a permanent prison, rather than a ship, and in 1852 . . . purchased 20 acres of land at San Quentin for $10,000. . . .

As folklore has it, the Waban arrived [at San Quentin] on July 14, 1852 (Bastille Day) with 40 to 50 convicts. On Oct. 12, 1852, a “contract was let for the first cell building,” according to reports. The building was completed in 1854. Inmates slept on the [Waban] at night and worked to construct the prison during the day. 77

The officers always called him “Old” Jim Smith, but he was merely “old” in criminal experience. Born in Prussia about 1831, few have heard of James P. Smith (probably Schmidt), although he was as colorful as he was unsuccessful as a bandit. Various nautical tattoos on his body indicated that he had been a seaman and had probably jumped ship at the time of the 1849 California Gold Rush. His first conviction was for grand larceny at Sacramento in September of 1851. He was sentenced to a two-year term in the California State Prison.

At this time there was really no prison at all. The twenty-acre site, at Point San Quentin on the bay just north of San Francisco in Marin County, had recently been purchased for $10,000. The old bark Waban, anchored offshore, was used to house the prisoners until cell blocks could be constructed on shore. Jim found himself back aboard ship, but under less than ideal circumstances.

Listing himself as a baker by trade, Jim may have been put to work preparing the bread, potatoes, meat and soup that constituted the convicts’ main diet. The thirty or forty other prisoners were kept busy quarrying stone on nearby Angel Island, gathering firewood, filling in swampland around the prison site or leveling the ground. Prison life was mostly working out in the open and there were few complaints until they were herded below deck on the Waban at night.

The lower deck of the old ship had been divided into a series of eight-foot-square cells with four or five convicts occupying each cell. It was blistering hot in summer and cold and damp in winter. Toilet facilities consisted of a bucket and the smell of the place by morning can well be imagined. Worse, in bad weather the men might be cooped up for days, the stench becoming so unbearable the guards refused to go downstairs until the place had been aired out. 78

The second significant use of prison ships in the United States during peacetime came in the early 1900s, when the U.S. Navy used five different vessels as prison ships—two on the East Coast and three on the West Coast. 79

On the East Coast, the collier SOUTHERY began operating as a prison ship in Boston in 1902; moved to Maine in 1903; and was joined there by the gunboat TOPEKA in 1905. 80 Following the opening of the Portsmouth Naval Prison in Maine in 1908, the SOUTHERY and the TOPEKA were kept on and served as overflow prisoner housing until World War I. 81 On the West Coast, the schooner MANILA was converted into a prison ship in 1907 and stationed at Mare Island (near San Francisco). 82 Later, the gunboat NIPSIC (1908–12) and the cruiser PHILADELPHIA (1912–16) replaced her. 83

In his 1915 report to Secretary of the Navy Josephus Daniels, Captain Ridley McLean, the Navy’s Judge Advocate General, after first noting that the SOUTHERY no longer was being used as a prison ship, summed up conditions aboard the PHILADELPHIA and TOPEKA (which were in the process of being phased out):

Reports from the U.S.S. Topeka show that while the detention system was in operation on board that ship the general sanitary condition was excellent, the food of good quality and sufficient in quantity; that notwithstanding the great care exercised in advancing detentioners to the higher classes, 29 per cent deserted after being made first-class and allowed liberty.

Reports from the U.S.S. Philadelphia show that the sanitary condition of the ship and health of the detentioners were excellent; that the food was sufficient in quantity and excellent in quality; that [religious] services were held weekly; that the detentioners gladly availed themselves of the benefit of the educational system in force in the service, including both the academic and technical instruction; that it was impracticable to hold all the usual military drills, because of the great decrease in the number of detentioners; and that for this reason the instruction and drills were held along naval lines, the idea being to make the men proficient in drills and in the duties of their ratings. 84

By far, however, the most significant peacetime use of prison ships in the United States has occurred in New York City. Since 1987, it has had five such vessels: BIBBY RESOLUTION, BIBBY VENTURE, HAROLD A. WILDSTEIN, VERNON C. BAIN, and WALTER KEANE. 85 As mentioned at the outset of this article, only the VERNON C. BAIN is still operating.

The impetus for this mini-armada was a crack epidemic that, beginning in 1985, sent the City’s inmate population soaring. 86 Desperate for additional jail space, in October 1986 Mayor Ed Koch announced that the City had decided to turn two former Staten Island ferries—the CORNELIUS G. KOLFF and the PRIVATE JOSEPH F. MERRELL—into prison ships. 87

Although Koch neglected to mention it—perhaps he did not remember or did not know—in 1965 DOC Commissioner Anna Kross had pushed a similar proposal:

Special state investigator Herman T. Stichman last night dismissed as “entirely unsound” City Correction Commissioner Anna Kross’ suggestion that obsolete aircraft carriers be used as prison ships to relieve overcrowding in the Women’s House of Detention and other city jails.

He declared that historically prison ships were “hell holes” and that “we don’t want prison ships any more than we want . . . a return to Devil’s Island.”

“What an absolutely unfortunate image it would give visitors to this country,” Stichman exclaimed, “if the first thing they were to see were prison ships tied up in our harbors!” 88

Following months of conversion work, the PRIVATE JOSEPH F. MERRELL, renamed the VERNON C. BAIN, 89 opened in March 1987, late and over budget. 90 The CORNELIUS G. KOLFF, renamed the WALTER KEANE, 91 followed in the fall. 92 Moored at Rikers Island, the two vessels, each with 162 beds, were made part of the Otis Bantum Correctional Center. 93

Even as it waited for the WALTER KEANE to arrive, the City was busy negotiating with Bibby Line, the venerable Liverpool shipping company, to lease two of its “accommodation barges” (i.e., floating dormitories). 94 Known, respectively, as the BIBBY RESOLUTION and the BIBBY VENTURE, both had housed British troops during the Falkland Islands War (1982). 95

The negotiations, which consumed nearly 18 months, were followed with intense interest by the media. 96 In the end, the City agreed to pay Bibby Line $20.5 million for each vessel, with this amount representing five years of lease payments ($17 million) and an additional $3.5 million to cover the cost of various retrofits (such as putting steel mesh over the portholes). 97 The deal also called for the City to have the option of purchasing the vessels at the end of the leases for a “nominal amount.” 98

The BIBBY VENTURE arrived first, pulling into New York City in October 1987. 99 Critics immediately scoffed at the idea of turning her into a jail:

Officials overseeing New York City jails say the troop barge the city has leased from a British company to cope with inmate overcrowding is dangerous to both prisoners and correction officers.

“Quite simply, it is a labyrinth of spaces that is largely unsupervisable by either sight or sound,” wrote Kenneth Schoen, director of the Office of Compliance. Mr. Schoen monitors city jails for the Federal District Court in Manhattan, which has overseen the jails’ operation since 1979.

“I don’t think the barge is cost-effective space,” Mr. Schoen wrote in a letter to Richard J. Koehler, the Commissioner of Correction. He called the Correction Department’s plans to erect partitions to better utilize the space a “Rube Goldberg scheme” and said the barge would require more guards than a conventional jail.

Mr. Schoen urged the city to reconsider leasing the $19 million barge and its option to buy the vessel at minimum cost in five years. He also suggested that the city reconsider leasing a larger barge for $21 million. . . .

Other experts who have visited the barge—which arrived two weeks ago and was officially transferred to the city yesterday—voiced similar concerns.

Robert Kasanof, chairman of the Board of Correction, the city’s jail oversight agency, pointed out that the barge was designed for well-disciplined British soldiers, not detainees awaiting trial for serious crimes. Mr. Kasanof said the barge’s narrow corridors and individual rooms would obstruct guards’ views.

“It will require extraordinarily rich, heavy staffing for it to be a secure place,” Mr. Kasanof said.

Others have criticized the quality of construction, saying inmates could easily hide contraband in ceilings and make weapons from plastic fixtures. They cite exposed smoke-detector wires, buckled floors, and European-style hand-held shower [heads] that are too delicate for jail use, among other failings.

“The whole thing could be taken apart very easily,” said Ted Katz, director of the Legal Aid Society’s Prisoners Rights Project. 100

Officially known as “Maritime Facility I” (BIBBY VENTURE) and “Maritime Facility II” (BIBBY RESOLUTION), 101 the two vessels were docked in Lower Manhattan. 102 The 386-bed BIBBY VENTURE opened in March 1988, 103 while the 386-bed BIBBY RESOLUTION opened in May 1989. 104 In his 2002 book about the City’s waterfront, urban planner Raymond W. Gastil said the barges, each “stacked with cells of human cargo like a freighter loaded with containers,” were at once “both an eyesore and a fascinating curiosity[.]” 105

When the residents of Lower Manhattan complained about the barges, 106 Koch, famous for his fast quips, 107 had a ready retort:

When I say every drug pusher should be arrested and put in jail, [people say] that’s fine. When I say that means we have to have jails in which to put them, and we dock a jail barge alongside a neighborhood, there are opponents. I say to these groups, “Would you rather have these people walking around in your neighborhood, or be in jail on a barge in your neighborhood?” 108

Although it already had four floating jails, in March 1989 the City announced that it had awarded a $125 million contract to New Orleans’ Avondale Shipyard 109 to build, from scratch, an 800-bed prison barge (officially designated “Maritime Facility III”), with completion expected by June 1990. 110 By the time the new VERNON C. BAIN arrived in New York in January 1992—18 months late and $36 million over budget 111—the crack epidemic had eased. 112 As a result, several prison officials admitted that the vessel had been a mistake. 113

In describing the City’s newest jail, the New York Times wrote:

The squat, 47,326-ton barge, named the Vernon C. Bain, is five stories high and resembles a jumble of incongruous blue and gray steel slabs without portholes. . . .

The deck of the new barge is as long as two football fields and 125 feet wide. Lower decks contain dormitories for 700 inmates and cells for 100, a medical clinic, a law library, a chapel and a mess hall. An enclosed exercise pen is on the top deck. 114

The Fall 1992 opening of the VERNON C. BAIN at Rikers Island 115 set off several changes:

• 1) The existing VERNON C. BAIN ferry became the HAROLD A. WILDSTEIN. 116

• 2) The BIBBY RESOLUTION and the BIBBY VENTURE were closed 117 and later put up for sale. 118 In July 1994, the pair were auctioned off for $1.8 million to A.L. Burbank, a California shipbroking company. 119 This price represented a return of less than four cents on the dollar. 120

• 3) The HAROLD A. WILDSTEIN and the WALTER KEANE ferries continued for a time to be used as inmate auxiliary housing but eventually were turned into administrative space. 121 In 2003, the City sold the HAROLD A. WILDSTEIN to a New Jersey scrapyard. 122 In 2004, it sold the WALTER KEANE to a New York financier, who soon sold it to a different scrapyard. 123

The crack epidemic of the late 1980s and early 1990s was not confined to New York City. 124 As a result, politicians throughout the country argued that ships were a cheap and fast way to relieve prison overcrowding. 125 In the end, however, none of these proposals was greenlighted. 126

In a 2018 interview, Admiral Paul F. Zukunft revealed that the U.S. Coast Guard was considering hiring a private prison ship to hold drug smugglers caught at sea until they could be brought to the United States. 127 According to Zukunft, this would allow the Coast Guard to focus on more urgent tasks. 128

1. HAROLD A. WILDSTEIN and WALTER KEANE

During its time as the VERNON C. BAIN, the HAROLD A. WILDSTEIN appeared in four opinions. In contrast, no case mentions the WALTER KEANE. 198

In Benjamin v. Malcolm, 199 a prison overcrowding case, the court, in acknowledging that the City was making good-faith efforts to address the problem, referenced the VERNON C. BAIN in a footnote:

For instance, the New York Times has reported that the conversion of a ferry boat into a “prison boat,” a project which was planned to take sixty days and cost 4.86 million dollars, actually took more than twice as long and cost almost twice that much. See Lambert, City’s Prison Boat is Late and Costly, N.Y. Times, Mar. 24, 1987, at B8, col. 1. 200

In First Marine Shipyard, Inc. v. Vessel “VERNON C. BAIN,” the shipyard that converted the PRIVATE JOSEPH F. MERRELL into the VERNON C. BAIN sued both the vessel and New York City for an unpaid balance of $194,999.27, calculated as follows: 1) $115,751.16 for past due invoices; and, 2) $79,248.11 for various change orders. 201

The ensuing litigation resulted in three opinions. In the first, Judge Charles S. Haight, Jr., sua sponte, directed the parties to brief the issue of whether admiralty jurisdiction existed. 202 In the second, Judge Haight, with a nod to Dickens, ruled that such jurisdiction was present:

The contracts at bar are not for the construction of a new vessel (clearly non-maritime); nor are they for the repair of an existing vessel so that she may return to navigation (clearly maritime). Strictly speaking, the contracts are for the conversion of a vessel. If the purpose of the work was to return the vessel to navigation in a different form for a different purpose, the contracts would clearly be maritime. . . . That cannot be said of the conversion of the ferryboat Private Joseph F. Morell [sic—should be Merrell] into the detention facility Vernon C. Bain: the Department of Corrections [sic] acquired the vessel not to transport inmates over water, but to keep them housed in a floating facility attached to the land. The City argues that the conversion work must be for the purpose of continuing the vessel in navigation. While the question is not free from doubt, I think that the Bain’s continued documentation as a vessel, her ongoing voyages under tow for inspection, and her residual utility as a vessel imbue these contracts with the requisite maritime nature. Indeed, the vessel in her present occupation follows in the melancholy tradition of the prison ship, relatively unknown today, but a familiar form of incarceration in the days of Dickens. Regarding the contract for jurisdictional purposes as one of “uncertain intendment,” and resolving those reasonable doubts undoubtedly present in favor of the admiralty jurisdiction . . ., I conclude that the contracts at bar are maritime in nature and hence within the Court’s admiralty jurisdiction. The case would be different if plaintiff’s contracted-for work had at its purpose the reduction of the ferryboat to scrap, or its conversion to use exclusively on land, without residual capacity for navigation. 203

2. BIBBY RESOLUTION and BIBBY VENTURE

In Silver v. Koch, 205 a group of Lower East Side residents sued to keep the BIBBY VENTURE from opening. They scored an early victory in the trial court (Nov. 13, 1987) 206 that quickly was quashed by the appeals court (Feb. 26, 1988):

Order of the Supreme Court, New York County (Shirley Fingerhood, J.), entered November 13, 1987, which preliminarily enjoined the respondents from transferring any prisoners or staff to Pier 36 or to the barge, the “Bibby Venture,” and which set the matter down for an evidentiary hearing as to whether an emergency situation exists and as to whether the use of the pier and barge is and will be of a temporary nature, reversed, on the law and facts, and in the exercise of discretion, and petitioners’ motion for preliminary injunctive relief denied, without costs or disbursements.

Respondents selected Pier 36 for the temporary mooring of a prison barge to alleviate overcrowding elsewhere. Petitioners commenced this proceeding to compel respondents to comply with Uniform Land Use Review Procedure (“ULURP”), State Environmental Quality Review [Act] (“SEQRA”) and City Environmental Quality Review (“CEQR”) procedures and also to preliminarily and permanently enjoin further action with respect to the preparation of the pier for the mooring of the barge.

Since petitioners have failed to show the applicability of ULURP, SEQRA or CEQR to the actions of the respondents, the grant of a preliminary injunction by the [trial] court was an abuse of discretion. Furthermore, petitioners did not establish their likelihood of success on the merits, irreparable harm to them absent the grant of the relief sought, nor a balance of the equities in their favor (see, W.T. Grant Company v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953). 207

One year later, a different group of residents filed a new lawsuit, raising the same types of claims, when the City announced that it was planning to move the BIBBY VENTURE to Pier 40 in Greenwich Village. Once again, the residents succeeded in obtaining a preliminary injunction from the trial court (Apr. 13, 1989). 208 After reviewing the facts more closely, however, the court dissolved the injunction and dismissed the case (June 7, 1989), explaining:

Much of petitioners’ arguments on this issue fall into the realm of the NIMBY syndrome (not in my backyard) (see, Greenberg v. Veteran, 89 Civ. 0591, WL36290 [SDNY April 17, 1989]; Lewis, Group Homes, Shelters and Congregate Housing: Deinstitutionalization Policies and the NIMBY Syndrome, 21 Real Prop. Prob. T.J. 413; Andreen, Defusing the “Not in My Backyard” Syndrome, 63 N.C.L. Rev. 811). While the court understands that no one wants a prison in their neighborhood, NIMBY is not a valid legal argument. The BOE and the responsible agencies were well aware of the community concerns when the BOE voted to approve the prison barge and when the negative declaration was issued. Moreover, community concern and outrage do not render the determination null and void (see, Note, [Neighborhood Character and SEQRA: Courts Struggle with Homeless Shelters, Prisons and the Environment, 14 Colm. J. Envt’l L. 231], at 231–243). 209

During their brief time as New York City jails, the BIBBY RESOLUTION and the BIBBY VENTURE spawned two reported decisions. In both, the firings of guards accused of dereliction of duty were upheld. 211

Additionally, in Palmigiano v. DiPrete, 212 a Rhode Island prison overcrowding case, the court, in describing the credentials of Dr. Lambert King, one of the plaintiffs’ expert witnesses, alluded to both vessels:

Dr. King is the Medical Director and Vice President for Professional Affairs at the Saint Vincent Hospital and Medical Center of New York City. In addition to his responsibilities for the direction of the medical services within the hospital, he is responsible for the provision of ambulatory medical, dental and mental health services at the Manhattan Detention Center in Manhattan as well as two maritime facilities housing additional inmates. . . . 213

Lastly, as previously explained, 214 the BIBBY RESOLUTION and the BIBBY VENTURE were sold in 1994 to A.L. Burbank, a California shipbroking company, for $1.8 million. The sale immediately was challenged by a Florida scrap dealer called Impact Shipping:

This is an action for money damages arising out of the sale of two barges by the City of New York (the “City”) to defendant A.L. Burbank Shipbrokers Ltd. (“Burbank”) rather than to the plaintiff, Impact Shipping, Inc. The plaintiff sues the City and Joanne Foulke, the Acting Deput[y] Commissioner of the City’s Department of General Services, contending that the failure to sell the barges to it deprived it of property without due process in violation of 42 U.S.C. § 1983 (first cause of action), constituted a breach of contract (second cause of action), and violation of the City’s own regulations (third cause of action). The plaintiff also sues defendant Burbank on the grounds that Burbank tortiously interfered with the plaintiff’s contract (fourth cause of action) and with the plaintiff’s prospective economic relations (fifth cause of action).

The City and defendant Foulke now move for summary judgment pursuant to Fed.R.Civ.P. 56 dismissing the plaintiff’s first, second, and third causes of action. Defendant Burbank moves for summary judgment dismissing the plaintiff’s fourth and fifth causes of action. The plaintiff cross-moves for partial summary judgment on the issue of liability on its first, second, fourth, and fifth causes of action and for summary judgment on its third cause of action. For the reasons explained below, the defendants’ motions are granted, and the plaintiff’s motion is denied. 215

The gravamen of Impact’s complaint was that after it had won the barges at auction, the City decided to restart the process and accepted Burbank’s bid because it was double Impact’s offer:

In May and June 1994, the City publicly advertised the sale of two prison barges by competitive sealed bid. (Mun. Defs.’ 3(g) Statement ¶¶1–3; Pl.’s 3(g) Statement ¶1.) The bid package contained several documents including an invitation to bid, which specified the bid opening date as June 22, 1994, at 11:00 a.m., and the bid terms and conditions of sale (the “bid terms”). (Hochman Aff. ¶ 24 & Ex. I.) The plaintiff submitted a bid, which included an executed copy of the bid terms, a completed and signed invitation to bid, and an initialed copy of the bid package cover sheet. (Hochman Aff. ¶ 34 & Ex. J.) When the bids were publicly opened and read on June 22, 1994, the plaintiff’s bid was the highest at $450,000 per barge, for an aggregate of $900,000. (Mun. Defs.’ 3(g) Statement ¶¶ 32–33; Pl.’s 3(g) Statement ¶ 14.). . . .

On June 23, 1994, [the City] received a late bid from defendant Burbank. (Hochman Aff. ¶ 40 & Ex. L.) Defendant Burbank’s bid was $900,00 per barge, for an aggregate of $1.8 million. By letter dated July 20, 1994, the City requested that the plaintiff extend its bid. (Hochman Aff. ¶ 46 & Ex. M.) By letter dated July 21, 1994, the plaintiff extended its bid to August 1, 1994, but stated that it considered its bid accepted as of 11:00 a.m. on June 22, 1994. (Hochman Aff. ¶ 47 & Ex. N.). . . . By letter dated July 21, 1994, the City invited both the plaintiff and defendant Burbank to participate in an informal re-bid. (Hochman Aff. ¶ 50 & Exs. P, Q.) The plaintiff received the informal re-bid letter, but did not respond to it. (Kanji Dep. (Hochman Aff. Ex. C) at 155–60.) Defendant Burbank signed and notarized the July 21, 1994 informal re-bid letter and returned it to the City including its bid in the amount of $900,000 per barge, for a total of $1.8 million. (Hochman Aff. ¶ 52 & Ex. R.). . . . The City sent Burbank a written sales order dated July 28, 1994, accepting its bid. (Hochman Aff. ¶ 56 & Ex. T.) 216

The plaintiff never received written acceptance of its bid from the City. (Kanji Dep. (Hochman Aff. Ex. C) at 109, 268; Blustein Dep. (Hochman Aff. Ex. D) at 131, 251.) Therefore, because the plaintiff’s bid was never accepted in writing, no contract was ever formed and the City did not breach the terms of the bid. 217

3. VERNON C. BAIN

Since it opened in 1992, the VERNON C. BAIN has been mentioned in 102 decisions. 218 Many of these cases are prisoner grievance lawsuits. 219 In Sankara v. City of New York, 220 for example, the court’s opinion begins:

Plaintiff Ahmadou Sankara brings this action pro se pursuant to 42 U.S.C. § 1983 against Deborah Mateo (“Mateo”), a medical professional at the Vernon C. Bain Center (“VCBC”), and the City of New York (the “City,” and together with Mateo, “Defendants”), alleging that Defendants were deliberately indifferent to his medical needs. 221

In DeBlasio v. Oliver, 224 the plaintiff similarly sued for mistreatment:

Plaintiff, proceeding pro se, initiated this action by filing a complaint on July 30, 2018. (Dkt. #2 (the “Complaint”)). In the Complaint, Plaintiff alleged that on July 6, 2018, while he was detained at the Vernon C. Bain Correctional Center, a jail barge that is part of the Rikers Island correctional complex, he got into an altercation with two correction officers. (See id. at 4). Correction Officer Oliver is alleged to have taken Plaintiff’s two Holy Qur’ans, thrown them on the floor, and put Plaintiff in an upper body hold. (Id.). Thereafter, Plaintiff alleges, Correction Officer Santiago sprayed Plaintiff in the face with OC-4 (a type of pepper spray). (Id.). Plaintiff claims to have suffered mental anguish as a consequence of the altercation, and asked the Court, among other things, to suspend Oliver and Santiago. (Id. at 5). 225

More recently, in Trail v. New York City Department of Corrections, 227 the court explained:

Plaintiff, currently detained at the Vernon C. Bain Center in the custody of the New York City Department of Correction (DOC), brings this pro se action under 42 U.S.C. § 1983. Plaintiff alleges that housing and testing policies at Rikers Island for handling COVID-19 illness show deliberate indifference to a risk of serious harm to him. 228

In some instances, the court does not give the vessel’s name, but the date of the underlying events usually makes it clear that the case involves the VERNON C. BAIN. 230 In State v. Luna, 231 for example, Daniel Luna was tried in a New Jersey state court in absentia and found guilty of various counts, including, most seriously, armed robbery. 232 In ordering a new trial, 233 the New Jersey Supreme Court held that Luna had had a very good reason for being absent:

Jury selection proceeded without [Luna] and was completed on Tuesday, August 13, 2002. Later that day, after the jury had been sworn but before the start of testimony, the assistant prosecutor learned that Luna had been arrested in New York the previous Friday and was incarcerated on a prison barge near Riker’s Island. The prosecutor reported that news in open court the following morning. Defense counsel then asked for an adjournment in order to arrange for Luna to be brought to court from New York. . . .

The trial court denied the motion for an adjournment [and w]ithout developing a full record, . . . conducted the trial in absentia. After a three-day trial, the jury convicted Luna on all six counts. . . .

[D]efense counsel made a timely motion for an adjournment after jury selection, which was denied. Without a hearing, the trial court lacked a basis to . . . proceed with trial. In light of the complete circumstances presented, the failure to allow defense counsel the opportunity to explore the information just received—that Luna was in jail in another state—rendered the subsequent proceedings defective. Therefore, . . . a new trial is warranted. 234

In Basagoitia v. Smith, 235 three men—Juan Basagoitia, Daniel Machuca, and David Robles—conspired in 2003 to commit a double murder. 236 After their plan went awry, they were arrested and eventually ended up together on a “prison boat.” 237 While on the vessel, Basagoitia and Robles got into an angry conversation about the attempted killings, which Machuca later testified about in court, thereby helping to convict Basagoitia. 238

In Brown v. City of New York, 239 an inmate sued, claiming that while he was leaving to go to court in 2005, a corrections officer prematurely shut a door, injuring his arm. 240 In denying the City’s motion for summary judgment, the court wrote:

On the date of the incident, plaintiff was in custody of the NYC Department of Corrections (“NYDOCS”) in the process of leaving the prison barge at Riker’s Island at 4:00 AM to go to court. Inmates had to walk single-file through a sliding metal gate operated by a corrections officer; its door slides to the right. At deposition, Mr. Brown testified that he was the last person in line; his left hand was handcuffed to the inmate in front of him. Plaintiff alleges that as he passed through the gate, the female corrections officer “must have pushed the button too quick,” causing his free right hand to get caught in the door. When the corrections officer failed to respond, the inmates pulled back the gate. . . .

The City’s reliance on the doctrine of res ipsa loquitor fails: Having assumed physical custody of plaintiff, the City owes a duty of care to safeguard a handcuffed plaintiff. (See Sanchez v State of NY, 99 NY2d 247 [2002].) The Court finds that the movant has failed to meet its burden of proof. A jury must determine whether one hand was free or both hands were cuffed, whether the plaintiff’s alleged swinging arm contributed to his injury and whether the corrections officer closed the door gate too abruptly. The defendant’s motion to dismiss is accordingly denied. 241

Lastly, there are many cases in which the VERNON C. BAIN is merely a bystander, such as Lurch v. NYSDOCCS 242: “Plaintiff, currently incarcerated in the Vernon C. Bain Center, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights by arresting him.” 243