We have all read about disappearances on cruise ships. The most well known case involves George Smith, who went missing on his honeymoon cruise on the Royal Caribbean cruise ship, the Brilliance of the Seas. George was on a honeymoon cruise with his bride, Jennifer Hagel Smith. They had just had a story book wedding. They were a beautiful couple. People said they were like the perfect couple that is on the top of a wedding cake.
How can someone go missing on a cruise ship, never to be found again? What follows such an incident in an effort to try to solve what happened? What are the possibilities of what can happen? Having represented the family of George Smith, who for the past six years have been seeking answers to what happened to George the night he was last seen in the cruise ship bar with his new bride and other passengers, we have experienced the horror and sorrow a family faces when trying to get answers. We have also handled several other cases where family members lost a loved one on a cruise ship. We have become all too familiar with the grief and sorrow of the family members and the last of closure they are able to get.
The Smiths had many questions as to what happened to their son. Where was his wife Jennifer when he disappeared? How did it happen? Was it a murder? Who was responsible? Why wasn’t the FBI there sooner? Did the cruise line tamper with and cause the destruction of material evidence? These are questions the media addressed extensively following the disappearance. The case received national and international attention.
I will mostly discuss the George Smith case even though there have been many incidents of disappearances and people going overboard on cruise ships, never to be found. International Cruise Victims Association, a great organization composed of victims of crimes onboard cruise ships, as well as family members who have lost loved ones on a cruise, documents many incidents and discusses the frustration of victims and family members in trying to get answers to questions that arise after these terrible events occur. Kendall Carver, President of International Cruise Victims Association, lost his daughter when she disappeared aboard a cruise ship. He has never been able to solve the question of what happened to his daughter. The cruise ship company never reported it in time for a proper investigation to take place, and then the cruise ship company actually resisted his efforts to get information from the cruise, to help him solve the mystery. He had to hire his own investigator and spend thousands of dollars to get information, actually to find out that his daughter had disappeared during the cruise and the cruise line had sent her belongings to storage without reporting the incident. Kendall Carver appeared before Congress when I spoke and his experience in trying to get answers as to what happened to his daughter raised eyebrows in Congress and with the media and spectators. I was an invited speaker at the hearing that spearheaded further hearings which eventually led to the passage of cruise ship legislation called the Cruise Vessel Security and Safety Act, which was signed into law by President Obama on July 27, 2010.
Back to the question how to solve a case when a passenger does disappear aboard a cruise ship. The first thing is the prompt reporting of the incident to the authorities. Unfortunately, on a cruise ship, the proper authority to do the investigation is often a matter of uncertainty and debate, and as a result, valuable time is lost in the investigation. In addition, often times the authority that is contacted and who takes the lead may not really have the manpower, or the incentive, to conduct a thorough and appropriate investigation.
In addition, the cruise ship companies have been accused, especially in the past, of not promptly reporting an incident to the authorities, and to take the investigation into their own hands. The problem with the cruise ship doing their own investigation is the old adage; it is the fox guarding the hen house. There is potential litigation that can arise, and potential liability on the part of the cruise ship company. Accordingly, one cannot expect them to document and preserve evidence that can lead to imposing liability on them for the incident. They will want to “spin” the facts in a way favorable to them.
In fact, when I represented the family of George Smith, the cruise ship company hired well known attorney Lanny Davis, who referred to himself as the “spin doctor”. This meant he was an expert on how to best “spin” the facts in the light most favorable to his client, which in this case was Royal Caribbean Cruise Lines.
Following the disappearance of George Smith, the cruise ship company started to spin the facts involving the disappearance, spending hundreds of thousands of dollars most likely.
Step 1, prompt reporting, was recognized as a problem by our Congress at the hearing on cruise ship safety. During my testimony as an invited speaker, I was questioned at length, as was the FBI and Coast Guard representatives, as to what the requirements were as to prompt reporting. There were great concerns on the part of congressman Shay at the hearings upon learning that the reporting was mainly voluntary on the part of the cruise lines, not mandatory. This was very disturbing because representatives of the United States Coast Guard and the FBI could not confirm they even knew with any degree of certainty how many disappearances or sexual assaults were occurring on cruise ships. This was addressed by the safety legislation that was signed into law by President Obama.
After the reporting, then comes step 2, the investigation. Is it an American citizen? Is it a foreign registered ship? Did it happen in international waters? Who has jurisdiction? Where do the family members look for answers? The Smiths faced this right from the beginning and quickly learned that the complex jurisdictional issues led to the critical passage of time without a proper investigation and failure to properly preserve evidence. They were frustrated because the cruise ship would not provide information, and George’s bride has stated she blacked out and had no memory of the evening when George went missing and was unable to tell the Smiths what happened to their son. Jennifer Hagel and the Smiths became at odds quickly because of the Smiths’ frustration.
We have learned from the disappearance of George Smith, as well as from the many disappearances that have been reported, it is critical to have prompt reporting of disappearances as well as any crime on a cruise ship. There needs to be clear and strong laws dictating the reporting requirements.
As for step 2, the investigation, who should lead the investigation? Should the cruise ship be allowed to do their own investigation when to do so may result in tainting evidence, or result in the loss of key evidence? In the Smith case, the cruise line hired attorneys who defend them in lawsuits to fly to Europe in order to interview witnesses and participate in the investigation on behalf of the cruise line. These attorneys have no experience in a criminal investigation of a potential murder, and they were acting on behalf of the cruise line in setting up their defenses to any potential claims. Hardly unbiased!
Who then should do the investigation? George Smith was an American citizen. One would hope, and expect, our American authorities, such as the FBI, would get involved immediately. Unfortunately, due to the fact they were not immediately notified, as well as the fact the ship was registered in another country, and the ship arrived at a port in Turkey, the Turkish authorities became the first to investigate.
The Turkish investigators spent an hour or two, and left the ship. They interviewed only a few of witnesses. Valuable forensic evidence was not obtained and was therefore lost.
The FBI did eventually get involved. By the time the FBI was involved, the cabin where George Smith was last seen had been cleaned. Valuable time and evidence was lost.
The George Smith case, as well as others, shows the importance of a prompt and proper investigation. This requires the authority with the greatest interest and abilities to get immediately involved. In the case of George Smith, that would have been the United States FBI. Unfortunately, it ended up being the cruise line with their self interests and inexperience at a criminal investigation, along with the Turkish police (with little incentive and manpower) that conducted the early critical investigation. As a result, this likely crime was never solved and no one ever prosecuted.
This now leads to the family members. What can they do to get answers? First, we know from the experience with George Smith, immediately getting United States authorities involved is the key.
The Cruise Vessel Security and Safety Act deals with reporting requirements. There are movements to have states pass laws to require the cruise lines to give passengers information on exactly how to report a crime to the appropriate authorities.
In the case of George Smith, the parents were left to rely on the FBI to do its investigation since the initial handling of the incident had resulted in the loss of valuable time and evidence, and Jennifer was unable to provide the answers. The Smiths were getting frustrated at the lack of information from anyone.
The Smiths then decided it was essential to embark on a crusade to educate the public, and to hopefully receive valuable information from the public which might help solve the mystery. My colleague, James Walker, who represented Jennifer Hagel Smith, decided to remain silent in the aftermath of the disappearance. She did not join the Smiths in their quest. The Smiths embarked on a media blitz on their own. However, following attacks in the media on Jennifer, she hired a public relations specialist, Mike Brown. Finally, Jennifer ended her silence and appeared on Oprah along with a representative of the cruise line. Yes, the same cruise line that had been accused of abandoning her in Turkey without any assistance after George went missing. This was somewhat puzzling.
The Smiths then tried the litigation process to try to compel the cruise line to provide information that might lead to answers. The cruise line resisted. I will blog about the laws the cruise lines used to fight the Smiths’ quest for information, and how they denied they had any duty to properly investigate the crime, to preserve evidence, and denied any duty to provide the Smith family with information.
The Smiths faced not only the spin doctor, but also unfavorable laws that allowed the cruise lines to argue they had no duty to investigate, no duty to preserve evidence, and could not be held liable to the Smiths for not properly reporting, investigation and preserving. The cruise line cited case law to argue no matter what emotional distress they caused the Smiths by not properly reporting the incident and not properly investigating it, they were not accountable to the Smiths. They argued no duty to do any of this under the law!
At the same time the Smiths were at odds with Jennifer because they wanted answers and were not getting any. There became a conflict with the goals of the litigation against the cruise line for the wrongful death of George Smith, which eventually led to the Smiths taking legal action in the probate court in Connecticut against Jennifer Hagel Smith.
As stated above it is critical to conduct a prompt investigation following any disappearance or crime aboard a cruise ship, including sexual assaults. An investigation must take place immediately. In the Smith case, Dr. Henry Lee, a famous forensic investigator, was hired to get involved. However, he admitted he was severely handicapped by the passage of time and loss of valuable forensic evidence. Dr. Lee was not involved until long after the incident occurred and had little to work with by the time he boarded the ship for an investigation. It was well after a year from the cruise George Smith disappeared on. The evidence was gone by then, the room cleaned and used during the many cruises that took place after the cruise George went overboard.
You can see some interesting videos of Dr. Lee doing his investigation onboard the Brilliance of the Seas on my website.
What can be said and learned from the George Smith case? As I stated, we know now disappearances and crimes happen on cruise ships at a greater frequency than we knew or expected. We know the cruise ship companies must be required to properly report them, and there has to be specific laws addressing this. We know safety laws need to address properly preserving the crime scene so the appropriate authorities can do their job.
The public has to be educated so a passenger who is the victim of a crime aboard a cruise ship, or family members who have lost a loved one during a cruise, will know what to do, and who to report to for help.
The complexities of Admiralty laws and jurisdictional issues will continue though. The cruise lines fly foreign flag ships, and incorporate in foreign countries. In addition the incidents virtually always occur in international waters. The FBI, the United States Coast Guard, and state authorities often assume someone else is handling the situation. There is often conflict with the country’s flag state, or the country where the incident occurred. Only through better laws clearly defining all the possible authorities that can legally get involved, and their jurisdiction, will the jurisdictional issues be less complex. However, we need to consider the true interests of the flag state when investigating a crime against a United States citizen, especially when that country makes millions from the cruise lines registering their ships there.
I also believe the law has to be that a cruise line can be held accountable for not properly preserving evidence, especially when the cruise line has so much control over the evidence, including the scene of the crime, the evidence, as well as the witnesses.
Our tort system, through holding responsible parties accountable, results in large corporation like cruise lines doing the right thing and making improvements in safety and the manner in which they handle such incidents. We feel the George Smith case did cause some positive improvements, including the passage of the Cruise Vessel Security and Safety Act, as well as the formation of the International Cruise Victims Association. However, holding the cruise lines liable when they do not do the proper thing is essential.
This all leads me back to how to solve a disappearance, or a crime, that happens on a cruise ship. It starts with prompt reporting. Then a complete investigation by the proper authorities that can do what the goal of the investigation is. It then ends with the legal system, whether it is through civil litigation or criminal prosecution of someone for a crime. Under either system, the cruise line must be accountable to promptly report every incident, and to only allow trained individuals to participate in any investigation. The cruise line must be held accountable to properly preserve the evidence, and not to destroy or lose valuable evidence.
I also believe that regardless of civil liability exposure, the cruise line should have voluntarily provided full and complete information about the investigation they did do in the George Smith case to the family members that were seeking information. Instead, the cruise line settled the wrongful death case with the Personal Representative, Jennifer Hagel Smith, prior to being legally compelled to provide access to certain information they had gathered, and prior to having to give deposition testimony under oath. The Smiths were frustrated by this, but unfortunately this is what occurred. The law that says the cruise line has no duty to preserve evidence or investigate, and no duty to turn evidence over to the family when they do investigate, which left the Smiths with only a civil lawsuit as their chance to get the information from the cruise lines. The cruise line was able to settle with the Personal Representative before the discovery process even started. The Smiths took action in the probate court in Connecticut to try to block the settlement taking place prior to the opportunity to pursue the civil action and the discovery process that was available with it. However, Jennifer Hagel Smith, was able to get the settlement approved despite the objection by the Smiths, which eventually led to the settlement of all claims. The Smiths were never able to pursue the civil action they wanted to in order to conduct discovery from the cruise line.
In future blogs, I will discuss my experience with the political system when I testified in Congress, the effects of cruise ship lobbying, as well some legal theories of liability that can be pursed for a crime onboard a cruise ship or a disappearance, as well as the defenses the cruise lines raised.
Our firm continues to be safety advocates for passengers and crewmembers who have been harmed or injured at sea.