Cruise Ships Traveling In Changing Legal, Security Climate

Lipcon, Marguiles, Alsina & Winkleman, P.A

Crime on cruise ships is rare, considering 10 million North Americans sailed last year.

But some crime victims believe that justice also is rare — due to overlapping investigative powers, difficulty obtaining evidence and witnesses, and a lack of sworn officers aboard ships.

Some of that could soon change.

The Cruise Vessel Security and Safety Act of 2010, aimed at strengthening safety and reporting standards, was signed by President Obama.

The new law requires the cruise industry to install video surveillance systems in common areas, as well as door viewers and security latches on cabin doors.

Each ship must carry equipment and materials to perform sexual assault medical exams and to collect forensic evidence. Ships also need to have drugs to prevent sexually transmitted diseases after an assault.

Another provision requires cruise ships to log and report all deaths, missing persons, alleged crimes and complaints involving some thefts, sexual attacks and assaults involving U.S. citizens.

Those records will be available to the FBI and the Coast Guard electronically and to all law enforcement officers upon request. The Department of Homeland Security will make cruise line crime statistics available to the public.

Cruise lines say they follow a zero-tolerance policy when it comes to crime on their vessels, and safety is their number one priority.

The new law will “bring consistency and clarity to the security and safety laws and regulations for our industry,” said Terry Dale, president and CEO of the Cruise Lines International Association, in a written statement.

The Sun Sentinel analyzed hundreds of incidents that the cruise lines sent to the FBI starting in 2007, after pressure from Congress and cruise passenger advocates led to a voluntary reporting agreement. Cruise lines serving U.S. ports said they would voluntarily report serious crimes, which the FBI defined as homicides, suspicious deaths, so-called “sexual matters,” assaults, kidnapping, acts of terrorism and theft of items worth more than $10,000.

Despite the 2007 agreement, passenger advocates and Congress continued to press for increased regulation because the hodgepodge of rules was inadequate for many victims. “They get the run-around,” said Jim Walker of Miami-based law firm Walker and O’Neill, P.A.

The newspaper’s analysis of 363 incidents voluntarily reported by cruise lines to the FBI from December 2007 through October 2008 shows:

* The FBI rarely launched full-fledged investigations, saying there wasn’t enough evidence, the allegations weren’t serious enough, or the agency wasn’t authorized to act;
* Florida police agencies have authority to investigate crimes at sea, but few do, saying the crimes are outside their jurisdiction and often victims refuse to cooperate;
* Ship security officers lack the power to arrest and the tools to investigate when most U.S. law enforcement agencies would; and
* In at least 84 situations, cruise lines and ship captains responded to complaints on their own. The worst punishment was kicking off alleged offenders at the next port. In other cases, passengers were warned or had their shipboard alcohol privileges yanked.

JURISDICTION ISSUES

On Feb. 28, 2008, a fight broke out among passengers aboard the Carnival Paradise while the ship was in international waters on the way to its home port in Long Beach, Calif. One passenger claimed another punched him, causing minor injuries that required shipboard medical attention. All of the passengers involved were U.S. citizens.

The injured passenger and another victim told cruise security officials they wanted to press charges.

A Long Beach FBI agent was contacted, but hearing what happened, the agent “stated that the FBI will not respond to the ship’s call (will not take the case),” the cruise line report said. A spokeswoman for the FBI office in Los Angeles/Long Beach declined to comment on the incident.

FBI officials in Miami say if agents don’t board a ship to investigate, it’s because allegations or the cruise line’s findings suggest the case isn’t serious enough or lacks the evidence necessary to meet the threshold for federal prosecution.

“So long as the victim or offender is a U.S. citizen, we would work the investigation or at least vet it out,” said David Nunez, an FBI Miami special agent for maritime cases.

FBI Miami officials declined to comment on specific incidents reported by the cruise lines. Federal investigators said they receive hundreds of phone calls about incidents aboard cruise ships.

Crimes in the United States are generally investigated without regard to the citizenship of the victim or suspect. At sea, citizenship is a factor that can lead to confusion and dropped investigations.

On Jan. 5, 2008, a 17-year-old Canadian boy said a fellow passenger on the Caribbean Princess grabbed the boy’s crotch in an elevator. The day before, the same man touched himself inappropriately in front of the teenager at the spa, the incident report said.

The ship sailed from Port Everglades, and the case was referred to the FBI by the Broward County Sheriff’s Office and Princess Cruises. The FBI said the incident did not rise to the level of federal prosecution.

Nothing further was done to investigate the accused man, a Mexican citizen living in Pinecrest and working at a recreational park for children, according to the incident report filed with the Broward Sheriff’s Office.

John Sifling, vice president of fleet security for Princess Cruises, said there were no witnesses; it was the teenager’s account versus that of the other passenger.

In at least 46 of the cases examined by the Sun Sentinel, victims declined to press charges or refused to cooperate with investigators. In at least 22 of those, law enforcement agencies were notified but declined further action.

“Without a victim, we don’t have a crime,” Nunez said. “We don’t force victims into speaking if they choose not to report, or do not want law enforcement intervention.”

That’s a choice victims on land don’t usually have, he said.

At least 17 arrests resulted from the 363 incidents reported by the cruise lines, the records show.

FLORIDA INVESTIGATIVE POWER

When the case of the 17-year-old was first referred to the Broward County Sheriff’s Office, the agency looked to the FBI because the incident occurred in international waters.

Yet Florida gives local law enforcement agencies the authority to investigate crimes that occur on ships that depart or arrive from a Florida port, if the U.S. government and the flagship country decline.

In the case of the 17-year-old, the Broward sheriff’s office says there’s no documentation to show the FBI sent the case back to Broward investigators, according to spokeswoman Keyla Concepcion. Without that, there could be no follow-up investigation, she said.

In general, the Broward sheriff’s office investigates cruise ship incidents only if they happen at Port Everglades or within 12 miles of the port.

FBI reports show the Broward sheriff’s office made two arrests under those circumstances one for domestic battery and one for grand theft.

Not all sheriff’s departments set limits. The Brevard County Sheriff’s Office, for example, actively investigates crimes that happen in international waters, records show. Investigating cruise ship crimes is no less of a priority than investigating those that happen within the county, officials say.

“We have a duty to enforce the laws of the state of Florida,” said Lt. Don Barker of the Brevard County Sheriff’s Office.

Brevard sheriff’s records indicate officers made six arrests involving cruise ship incidents that occurred in international waters during the timeframe of the reports analyzed by the Sun Sentinel.

Among them, Brevard authorities arrested registered sex offender Richard DeBartolo of Davenport, Fla., for offering money to 13-year-old boy in exchange for sex aboard the Carnival Sensation on Oct. 19, 2008. The cruise line was told by an FBI agent that the U.S. Attorney’s Office would not accept the case because there was no physical contact.

The Brevard County Sheriff’s Office charged DeBartolo for lewd or lascivious conduct and for procuring a minor for prostitution. He is in jail in Brevard County, where the case is pending.

SHIP SECURITY

On March 31, 2008, a member of the Seabourn Legend crew reported being raped by another crew member. The ship did not have a sexual assault exam kit onboard to collect medical specimens, the report said. Both crew members’ clothing was listed as evidence, but the bed linens were changed before the incident was reported to the FBI.

The FBI investigated, but no action was taken, said Bruce Good, spokesman for Yachts of Seabourn, in an e-mail. Sexual assault exam kits were not required by law at the time, but Seabourn now has two on each vessel.

Without evidence, FBI agents say it’s almost impossible to determine whether a sexual assault or domestic assault occurred at sea.

On U.S. soil, officers who see evidence of violence often can make an arrest.

Shipboard security officers preserve crime scenes and evidence until law enforcement officers can board the ship. That can be days. Once in a port, officers may have only hours to investigate the crime scene, until the ship leaves for another cruise.

“We have issues because we’re (dealing with) a floating crime scene,” said Nunez.

Ship security employees are trained to observe and report incidents, but they are not police officers, say cruise security officials. They’re employed by the cruise line.

“There’s a tremendous conflict of interest with the ship security officials being employed by the cruise ships,” said Kendall Carver, chairman of the International Cruise Victims Association.

Carver contends that ship security officials are overstepping their role by asking victims about their alcohol consumption or whether they want to prosecute.

Cruise security leaders insist their employees treat victim allegations as if they were true, leaving detective work to law enforcement. Company legal departments are notified of onboard incidents, but attorneys do not interfere with shipboard investigations, they say.

“Mistakes can be made from time to time,” said Robert Beh, vice president of security services for Carnival Cruise Lines. “There’s never anything malicious involved in our investigations. Everything is forthright.”

The reports may not represent the entire picture, said Dale, of the Cruise Lines International Association, which represents the cruise industry’s 24 major lines.

“We’re doing an awful lot right,” Dale said. For example, security leaders from the association meet every 60 days to share information and discuss ways to improve, he said.

SHIPBOARD JUSTICE

Captains can put ashore anyone who poses a threat to others on the ship, and passengers agree to those terms in the fine print of the cruise contract when they buy tickets.

In at least 44 cases, passengers or employees suspected of crimes were kicked off ships or left voluntarily, the records show. Cruise companies say they tell federal authorities about former employees who are kicked off so the employees will be denied work visas in the future.

Whether other agencies are informed of potential wrongdoing is unclear. When male crew members aboard Royal Caribbean’s Vision of the Seas reported that a ship doctor fondled them during medical exams, the Los Angeles Port Police told the victims to make a citizen’s arrest on the medical professional because the “alleged crime was a misdemeanor,” the report to the FBI showed.

Instead, the ship’s captain conducted a shipboard hearing into the allegations, and the doctor was immediately fired and put ashore, the cruise line report said. There is no indication whether the doctor was reported to medical or local authorities.

On April 22, 2008, Holland America MS Statendam officers put ashore a 75-year-old male passenger in Kobe, Japan, after he confessed to sexually assaulting a crew member.

Holland America reported the incident to the FBI, which contacted the legal attache in Tokyo.

No one knows where the passenger went next. “I have no knowledge that they did follow-up,” said Charles Mandigo, director of fleet security for Holland America Line.

How many shipboard offenders go unprosecuted is unknown.

“It’s a huge problem,” said Charles Lipcon, a Miami-based maritime attorney who represents cruise ship victims and has written a book about crime on cruise ships. “There are a lot of sexual predators who believe they can go onboard a cruise ship and do whatever they want without any ramifications.”

HOPE WITH THE NEW LAW

Nearly five years ago, a few people who had lost members of their family on cruise ships formed the International Cruise Victims Association and quickly began advocating for increased regulation on the cruise industry. The group laid the groundwork for many provisions included in the new cruise law.

The issue of crime aboard cruise ships came under the national spotlight in 2005, when passenger George A. Smith IV went missing during his Mediterranean honeymoon cruise headed to Turkey, and blood was found below his cabin balcony. Smith’s disappearance prompted a Congressional hearing later that year and others followed.

Sponsors of the cruise bill and leaders of the victims association say the new law will improve the safety of Americans who go on cruise vacations without realizing they are not protected under U.S. laws when they leave its territorial waters.

Yet, some industry watchers say they expect it to have marginal impact.

The FBI can enforce federal laws on the high seas when a U.S. citizen is involved, but it rarely does, said Lipcon, the Miami-based maritime attorney. “The enforcement of those laws has been very meager, though recently it seems to be getting better.”

Experts say crimes at sea would best be prevented if passengers and crew members were more vigilant. That means consuming alcoholic beverages responsibly and supervising children and teenagers, said David Spanich, supervisor special agent of maritime operations for FBI Miami.

“You can’t let your guard down, because bad guys take cruises, too,” Spanich said.

Originally Posted at: www.insurancejournal.com