HIGH SEAS CRIMES
by Timothy MB Farrell.
A woman is raped by a crewmember. Two twelve year old girls are sexually assaulted in their cabin. An elderly man mysteriously disappears after winning nearly $10,000 at the casino. A father sees a man grab his son's arm and has to forcibly free him. A family is robbed at knife point, forever changing their lives.
These and other incidents that do not appear in the news can be found on the web site (www.internationalcruisevicitims.org) of the International Cruise Victims Association's, an organization formed to support the families who are victims of crimes, disappearances, and accidents aboard cruise ships. Surprisingly, in this day and age, tragedies at sea happen all too often. In fact, over the last holiday season, several national news stories involved passengers and crew reported lost at sea.
The rest of the story, as Paul Harvey would have said, is as disturbing as the crimes described above. The cruise ship refused to help the family that was robbed. The man who made a commotion when he freed his son from the clutches of a predator was himself forced off the ship by the captain, claiming he had caused a disturbance - leaving his son and his wife to fend for themselves against a possible child molester. In the case of the man reported missing, and possibly being overboard, the ship took several hours to stop and mount a search - two days later the man's body washed up on an island. Security never found the waitstaff that had invaded the young girls' cabin, but did offer the family some coupons for a discount on their next cruise. The rape victim was told to collect her own evidence and given no guidance on how to proceed - the perpetrator is never caught in spite of her pointing him out to security personnel.
The problem is that security is not a high priority aboard these ships. Most have only about five security personnel per 1,000 passengers, and usually less are on duty at any one time. This is because maritime law includes little statutory or regulatory oversight. Instead, case law controls. This judge made law puts the burden on the passenger to show that the ship knew or should have known that it did not have sufficient crime prevention procedures in place. This is nearly impossible to determine because there is no reasonably accessible central reporting facility to analyze what crimes are occurring and if there are any patterns. If there were, a victim of a crime could show that the ship had notice of a problem and that it did not prepare itself by providing enough guards or other security measures to protect the passengers.
The issue is further complicated because all crimes are treated as potential lawsuits, meaning that an investigation is focused on absolving the ship of liability, rather than on catching the perpetrator. The investigation results are then protected by the attorney client or another privilege to prevent disclosure in other cases.
The problem of crime at sea has been the focus of recent Congressional hearings and several scholarly articles. As disclosed to Congress, the cruise lines admit that five percent of passengers are not very satisfied with their vacation experience. About half of all first time cruisers never go back, indicating that the experience may be very overrated (see David Foster Wallace's essay in A Supposedly Fun Thing I Will Never Do Again). Never-the-less, the industry serves over ten million U.S. passengers a year earning $32 Billion annually. It is a huge industry. However, because most of the ships are foreign owned, they pay little or no taxes. They do, however, pay millions for lobbyists to maintain the status quo.
The problem of crime aboard cruise ships has not gone unnoticed by legal scholars. Judge Thomas Dickerson's article entitled "The Cruise Passenger's Rights and Remedies:2006" published in the Travel and Tourism Law International Revue, lists fifty things that can go wrong either on board a ship or on an excursion and cites to hundreds of published legal opinions detailing the incidents. These incidents range from being hit by golf balls and shot gun shells to women and children being raped or molested by crewmembers.
Many of the cases, unfortunately, result in dismissal. According to the author, today's fleet is governed not by consumer friendly laws prevalent in most states where the passengers originate, but by Dickinsonian legal principles designed to insulate cruise lines from legitimate passenger claims.
Most frightening are the number of violent crimes that take place on cruise ships. Many of the disappearances, for example, are thought to be robberies gone wrong. Rape and sexual assault is also a problem. This is what finally got Congress's attention.
These hearings are featured in a University of San Francisco Maritime Law Journal article entitled "High Crimes on the High Seas - Re-evaluating Cruise Line Liability" by adjunct professor and leading California admiralty attorney Marva Jo Wyatt.
According to Ms. Wyatt, early American maritime law sought to impose the utmost duty of care on common carriers. After all, passengers were essentially captives of the ship. They relinquished their custody and care to the carrier. No other law or protection exists at sea, other than the captain's. Unfortunately, a series of poorly decided lower court cases reduced this standard of care. The U.S. Supreme Court has not spoken on the issue as it relates to crimes that occur on cruise ships. It could take years or even decades for the appropriate case to wind its way through the system.
Recent Congressional hearings have revealed a need for immediate intervention due to the size of the vessels in service and their millions of mostly American patrons. For example, a remarkable 158 sexual assaults were reported aboard Carnival vessels in the last five years and 58 aboard the much more conservative and smaller Royal Caribbean fleet over the same period. It is suspected that crime rates may be fifty percent higher at sea than on the mainland.
Statistics for the entire industry are hard to come by. For example, the author still does not have a response to a months old Freedom of Information Act request for criminal statistics kept by the Coast Guard (remarkably, the Guard's response was that it did not keep such records, in spite of the fact that it had recently assured Congress that crime on the high seas was not a problem). Fortunately, records are expected from the FBI. According to the FBI, it has over 1,700 pages related to crimes at sea for last year alone.
Although these records have yet to be delivered, what is known is that hardly any of these crimes are investigated by federal authorities. For instance, there is a $10,000 minimum to investigate a theft, burglary, and robbery. This means that even if the perpetrator is caught by the ship's security, the federal government will not investigate or charge any such crime involving less than that amount. Few cruise ship cases are ever prosecuted. In the case of sexual assault, the Department of Justice has admitted that it has no sexual assault prosecution expertise. Finally, there are hardly any federal convictions of any alleged crimes (perhaps two in 2008). Basically, a cruise ship is a very attractive environment to commit a crime. The elderly clientele and intoxicated young women are very vulnerable, the security is lax, there are hardly any official investigations, and there is rarely a prosecution for those stupid enough to be caught.
Ms. Wyatt believes that if the lower courts used the higher standard of care originally envisioned by the Supreme Court and other federal maritime precedent that the cruise ships would become much safer. This would ease the burden on victims to prove liability and force the cruise ships to make adjustments or face further liability for not providing a safe ship. However, considering the glacial pace of the court system, Congress should simply fix the problem immediately.
The proposed bill to fix the problem is entitled "The Cruise Vessel Security and Safety Act of 2009." A recent cruise industry magazine discussed the bill's predecessor in the last Congress. "U.S. Law's Long Arm Aims to Combat Crime," Passenger Ship Technology, Aug/Sept. 2008. That bill did not make it out of committee before the session ended, although it had bipartisan support.
Among other things, the new bill will require ships to report to the Coast Guard all deaths, missing individuals, alleged crimes, and other complaints. This information would be made immediately available to the public and posted on a public website. Cruisers would immediately know of a crime spree and be on the look out. Potential cruisers could plan accordingly, just as they can check into the safety of any neighborhood before taking a trip.
In addition, medications would be required on board to prevent sexually transmitted disease after an assault or a rape. Access would be given to a sexual assault hot line and to the FBI to allow for immediate reports of a crime and consultation with investigatory and trauma experts.
Physical aspects of ship safety would also be improved. Peep holes would be required in cabin doors and higher guard rails would be required around the ship to prevent people from falling overboard. Better control over keys and better fire prevention controls would also make the ships safer. In addition, and most significantly, the bill envisions implementation of technology to detect when a passenger has fallen overboard. These are all common sense solutions that will make the ships immediately safer.
As a final safeguard, the bill also amends the Death on the High Seas Act. As with the improved reporting requirements, this will allow the courts to get better facts in the most serious cases involving the most vulnerable passengers. As it stands now, the family of a decedent who was not working cannot assert a claim for damages. Such passengers constitute nearly half the industry's patrons. By allowing such claims, the courts can determine whether a vessel was actually safe in a particular instance and allow for continuous improvements in safety standards without requiring Congressional intervention.
The Death on the High Seas Act was originally designed to protect the industry and encourage ship building. The shipbuilding industry is practically nonexistent in this country, since nearly all of the modern cruise ships are built overseas and foreign flagged. The policy has clearly failed. In addition, the industry has grown considerably, such that it does not need the protections afforded by the law. Having outgrown the subsidy, especially at the cost to families who have lost a child or grandparent, it is time for a change.
Congress recognizes this and is finally willing to take actions necessary to make ships safer for all Americans. You can contact your representative at www.house.gov or senator at www.senate.gov about the need to support this bill. Hopefully, its passage will make cruising less attractive to criminals and safer for everyone. Meanwhile, before going on a cruise, make sure to keep your guard up and be alert for criminal activity.