Does the New Maritime Law, The Cruise Vessel Security and Safety Act of 2010 Really “Beef Up Cruise Safety” As Reported By South Florida Sun Sentinel

246002_white_house_2.jpgAn interesting article appeared in the South Florida Sentinel on August 9, 2010. It reported on the passage of the Cruise Vessel Security and Safety Act of 2010, which I previously discussed in another post, President Obama Signs Cruise Vessel Security and Safety Act Legislation Into Law For Added Safety Protections For Cruise Ship Passengers.

As stated by the Sentinel, the new law was passed due in part to increased pressure as a result of the public notoriety received after passenger George Smith IV went missing during a honeymoon cruise aboard a passenger cruise ship. After his disappearance, there was a lot of criticism regarding the laws that governed the cruise ship’s responsibility for reporting the incident, as well as the investigation of the incident. Our firm represented the parents of George Smith IV and in addition to the wrongful death case on behalf of the parents of George Smith IV seeking compensation under the Death on the High Seas Act, the parents were also pursuing a claim against the cruise ship company for the manner in which the investigation of the incident was handled. There were allegations that the cruise ship mishandled the investigation, resulting in lost evidence, preventing the family from ever finding out what truly happened to their son.

It was somewhat of a novel theory against the cruise ship company brought by the parents regarding the mishandling of the investigation. Our maritime and wrongful death firm argued the situation was similar to a police agency botching an investigation, resulting in the failure to solve the potential crime. We were able to find legal precedent for suing an investigating agency for the failure to properly preserve evidence.

As a result of botching an investigation, family members are often left without closure as to what happened to their loved ones. The damages suffered by family members from the lack of closure are greater than any economic loss that can be measured easily.

Although a Florida Court ruled that the parents could not pursue an intentional infliction of emotional distress claim against the cruise line based on the manner in which they handled the investigation, citing Federal Law that had previously held that a cruise line did not have a duty to investigate in the first place, the parents continued to be relentless in their pursuit for answers from the cruise line company. The FBI continues to maintain an open investigation regarding the matter.

It is very troubling that the cruise line was able to cite Federal Law stating that they had no duty to investigate a potential crime aboard their cruise ship, and thus, since they had no duty, they could not be held liable for the failure to conduct a proper investigation following the disappearance of George Smith IV.

The Cruise Vessel Security and Safety Act of 2010 will now require the cruise ship industries to log and report all incidents involving disappearances /missing persons, alleged crimes and complaints involving thefts over a certain amount, as well as report sexual assaults involving United States citizens. The FBI and the Coast Guard will keep the records, and the Department of Homeland Security is going to make these crime statistics available to the public. This will create greater awareness to the public regarding criminal incidents that do occur on passenger cruise ships, regardless of the cruise lines claim that the amount of crime is minimal compared to that which occurs in a big city.

The cruise ship industry frequently cites crime statistics they obtain regarding crime in big cities, and then compares the percentage of criminal acts to those occurring onboard passenger cruise ships. The cruise lines then cite to the fact that more than ten million North Americans sail on cruise ships, and the percentage of passengers subjected to criminal incidents are rare compared to the same statistics on land. However the comparison does not really make sense, as I pointed out when I testified in Congressional Hearings regarding Maritime Safety Laws.

The statistics the cruise lines rely upon are misleading. A big city has a certain population, whereas the cruise ship industry has a rotating population. The cruise line also has a limited and secured environment, where you would not expect criminal activity to occur at all, or very little, with the proper amount of police presence onboard the ship.

The cruise lines have been critized for not having an adequate presence aboard the cruise ships to deter crime because it takes away from the image the cruise lines try to portray to the public, which is that you are sailing aboard the “Love Boat” and have nothing to worry about. This lack of awareness, and creation of an image that you are completely safe aboard a cruise ship, causes a person who goes onboard a cruise ship to let their guard down and not be aware of potential criminal activity. This includes parents who take young children aboard the cruise ship, and do not believe their children could be at any risk aboard the cruise ship if left alone.

The Congressional Hearings, and statistical analysis that have come out, have brought to the public awareness to the fact that criminal activity does occur aboard the cruise ship at a much higher rate than anybody ever expected. The new laws will create even greater awareness. The increased public awareness will hopefully result in a passenger aboard a cruise ship not letting their guard down as much as before, and hopefully will reduce the amount of crime occurring aboard cruise ships.

Of course, alcohol has been linked as a major factor in a lot of the criminal activity, including the number of sexual assaults that have occurred aboard ships. Even in the George Smith IV disappearance, the cruise ship company blamed over use of alcohol for the incident. Statistics show that the cruise ships make millions of dollars each year serving alcohol aboard cruise ships, and it is common knowledge that alcohol is actually promoted once you get onboard a cruise ship. Often times you are greeted with free drinks, and bars are open constantly aboard the ship. The bar waiters who work onboard the cruise ships are paid low salaries, and have to sell more alcohol to generate more income and greater percentages for themselves, as well as greater tips. This all leads to overuse of alcohol onboard cruise ships.

The newspaper analysis of 363 incidents aboard cruise ships that were actually voluntarily reported to the FBI, from a period of December 2007 through October 2008, reflected the following:

1. Rarely did the FBI ever conduct full-fledged investigations.

2. Florida Police Agencies often times stated crimes were outside their jurisdiction and victims did not cooperate.

3. Security Officers aboard the cruise ships did not have the power to arrest nor the tools to investigate the incidents which most US Law Enforcement Agencies would have.

4. In 84 of the incidents, the cruise ship companies, and their Captains, investigated the incidents on their own. The most severe punishment given was sending the alleged offenders off the ship at the next port of call. Other times, passengers were simply warned or their alcohol privileges were taken away from them.

The hearings, and new laws, reflect the complexities of Maritime Law involving jurisdiction, as well as choice of law. In the case of the disappearance of George Smith IV the ship was in foreign waters, and actually traveling from one foreign country to another during the voyage in which George Smith IV went missing. It was never determined exactly where the ship was when George Smith IV went missing, creating further jurisdictional complexities.

Often times, time is of the essence in conducting a proper investigation. If there is any disagreement with different countries over who has jurisdiction over the investigation, including the flag country of the cruise ship, critical evidence can disappear while sorting out the jurisdictional complexities. In the case of George Smith IV, the initial investigation was conducted by Turkish authorities when the ship came into port in Turkey. There were allegations that the Turkish authorities spent too little time doing their investigation, and conducted a very inadequate investigation especially in view of the nature of the situation. The FBI’s involvement was delayed, resulting in further claims that the lack of a prompt and proper investigation resulted in losing material evidence.

Hopefully the Cruise Vessel Security and Safety Act, with the reporting requirements, will add some clarity to the cruise ship’s responsibilities upon learning of a potential serious criminal incident aboard their ship. Prompt and adequate investigation of any incident, including sexual assaults, missing persons, homicides, assaults, disappearances is critical.

Along with the ongoing discussions of the Maritime Laws in connection with the BP Oil spill disaster, our Congress, as well as the public, are becoming even more aware of the complexities involved in deciphering Maritime Laws. Maritime attorneys, as well as professors of Maritime Law, have had to be consulted with to explain many of the current Maritime Laws. When I testified in Congress, I was sent a series of questions the Congressmen wanted to discuss at the hearings, and it revealed to me the lack of knowledge and certainty that was present regarding the Maritime Laws that governed the passenger cruise ship industry.