The Q Flag

by Nicholas Walsh, PA

Bahamian waters last year, I prepared to hoist the Q flag we’d bought at Hamilton Marine. Solid yellow, the Q flag shows that the ship is requesting “practique,” permission to enter the foreign country and to submit to inspection by the state authorities.

At least since the Middle Ages, the doors of persons with communicable disease were marked, sometimes by a bundle of rushes, other times by a yellow cloth. The nautical world long used a yellow flag to mark a ship with disease on board. Possibly this use of a yellow flag is the source of the term “yellow jack,” for yellow fever, “jack” being a term for a type of nautical flag. Today, the Q flag is a declaration not that the ship is infected, but rather that it is free of communicable disease.

Beginning in 1347, the Black Death visited Europe, eventually killing about one-third of the population. The cities of Italy depended on trade, and those cities developed various laws requiring persons visiting from infected areas to submit to “trentino,” a 30-day isolation period, and later to “quarantinario,” derived from the Italian word quaranta, meaning “forty.” It’s not clear why the isolation period was extended to 40 days. It may be because 30 days had been found ineffective, or possibly because the 40-day period reflected the 40-day Christian observance of Lent, Christian traditions being held very close by Europeans hoping to remain free of disease in times of plague, before germ theory or modern medicine.

Today the federal government continues to have the broadest possible authority to prevent persons who may carry communicable disease from entering the country. That’s in Title 42 United States Code section 264. That same section allows the “apprehension and examination” by the Surgeon General of any persons who may carry disease. There’s a provision suggesting that only persons who may be about to move to another state may be apprehended, but that’s just to satisfy the Constitution’s commerce clause – you can bet that if the feds believed a person might be infected and had to be detained, that would happen regardless of the patient’s travel plans or where they were located.

The federal laws work hand in glove (nitrile glove, no doubt) with state laws. In fact, the states have even broader power to enforce quarantine. In Maine, Title 22 section 802 allows the governor to declare that a public health emergency exists, and to adopt procedures for isolating and treating persons who are infected or who may spread infection. There’s little doubt that in the event of bad communicable disease the courts would defer very broadly to the decisions of the governor, however drastic.

You might remember the Mainer Kaci Hickox, a nurse who in 2014 worked selflessly in Sierra Leone in response to a bad West Africa Ebola outbreak, 11,000 dead and a mortality rate as high as 90%. Returning from Africa, Kaci landed in New Jersey and, although apparently healthy, was held in airport quarantine for three days. Initially she was detained under the very broad federal quarantine power effective at border points, and then under New Jersey law. New Jersey released her after three long days in a cold and lonely quarantine tent, and Kaci returned to Fort Kent. But when New Jersey’s governor gave a heads-up to Governor LePage, Maine prepared to arrest her and force her into quarantine in Maine as well.

The case went before a judge, who became convinced that symptom monitoring was enough to control the risk of Ebola erupting in Aroostook County. The Centers for Disease Control and Prevention (CDC) recommended symptom monitoring of doctors and nurses returning from West Africa, but stopped short of requiring any type of quarantine. But states have the power to exceed CDC guidelines, and in the 2014 Ebola outbreak New Jersey, Maine, and some other states chose to exercise that option.

There’s a legal maxim, “necessity knows no law.” If the current contagion gets bad, the feds and the governors will do whatever they think they need to to protect the public, and the law be damned.

Be well, and stay out of trouble.

Nicholas Walsh is an admiralty lawyer practicing in Portland. He may be reached at 772-2191, or nwalsh@gwi.net.