Jurisdiction for Crimes on Cruise Ships: What a Recent Spanish Case Reveals About Gaps in Jurisdiction

By Tia Rowe 

            In April 2019, a passenger was sexually assaulted while on board the MSC Divina Cruise Ship.[1] The MSC Divina flies under the Panamanian flag, but it is part of a Swiss-based company and its home port is in Miami, Florida, USA.[2] Thus, the ship presumably would be subject to Panamanian laws, but it could also be subject to Swiss or United States laws because it has ties to those countries.[3] To further complicate the jurisdictional issue, the victim of the sexual assault was a teenager from the United Kingdom and the perpetrator was an Italian national.[4] Despite its ties to the United States, Switzerland, and Panama, and the parties connection to the United Kingdom and Italy,  the Captain of the MSC Divina reported the sexual assault to authorities in Spain.[5] The Captain reported the crime in Spain because the crime occurred while in international waters and the next port the ship entered into was in Valencia.[6] However, the Spanish judge declined to hear the case or investigate the alleged crime because he determined that Spain did not have jurisdiction “because [the alleged crime] was committed by a foreigner on another foreigner in international waters and on Panamanian territory.”[7] The Spanish judge also declined to hear the case because of a 2009 Spanish law that restricts Spanish courts from hearing cases that occur in other countries and do not involve either a Spanish national victim or suspect.[8] As such, the case between a British victim and an Italian suspect on a cruise ship flying under Panama’s flags would be barred from being heard in Spain.[9]

            This case raises significant concerns about what jurisdiction applies to crimes that occur on cruise ships while in international waters. There are some easy answers to this question depending on where exactly the ship is located at the time the crime occurs and the nationality of the parties involved. For instance, if a ship is within 12 miles of a country’s coastline then that country’s laws are generally applicable to the ship.[10] If a ship is docked in port when the crime occurs then the country where the port is located will have usually have jurisdiction, depending on the laws of that country.[11] If a ship is located within 24 miles of a country’s coastline, then that country has limited jurisdiction; but, if the ship is outside of 24 miles from the coast, the ship is in international waters and, generally, the laws of the country whose flag the ship flies will apply.[12] Another easy answer comes if the cruise ship has ties to the United States through being owned by the United States, the suspect of the crime is a United States citizen, the crime occurred within 12 miles off the coast of the United States, the victim is a United States citizen, and/or one of the parties involved is a United States citizen and the ship had either departed from a United States port or will arrive in a United States port.[13] In the case of the sexual assault that occurred on the MSC Divina, none of these easy answers apply.

            To further complicate matters, advocates for better law enforcement on cruise ships are lobbying for more oversight and for an independent law enforcement agency to be onboard cruise ships to investigate crimes.[14] There are a myriad of different crimes that occur on cruise ships­–including murder, assault, and theft– which leads advocates to argue that the jurisdictional problems and the lack of transparency from cruise ships creates an environment that makes it difficult to hold parties and businesses accountable when a crime does occur.[15] The proposal for an independent law enforcement aboard cruise ships further complicates the current jurisdictional problems. If the law enforcement agency falls under the laws of the country whose flag the ship sails under, then that country will be responsible for providing and training personnel and possibly even for expending its own resources to investigate crimes that may occur thousands of miles from the country itself.[16] If the law enforcement is instead an independent body with no national ties, there will doubtless be problems determining how to hold that agency accountable and whether that agency can detain and prosecute another nation’s citizens.

            In conclusion, while there are often easy answers to what jurisdiction applies to crimes committed in international waters on cruise ships, cases like the sexual assault that occurred in April 2019 illustrate that there are still gaps in the understanding of what jurisdiction applies.[17] Critics of cruise ship security are advocating for an independent law enforcement agency, but such a system would still fall prey to jurisdictional problems.[18] To prevent gaps in the jurisdiction which allow allegedly violent suspects to walk free, there ought to be a more thorough and streamlined procedure for cruise ships and victims to report crimes to. The general law in the United States that allows the United States to have jurisdiction if one of the parties is a citizen seems to be one of the easiest and clearest solutions available and perhaps other countries should model national legislation on it to aid in protecting their citizens while in international waters.[19]

#Blogpost #cruiseships #crimesoncruiseships #Spain #internationalwaters #lawenforcement #TiaRowe

[1] See Elisabeth Malkin, Report of Sexual Assault on Cruise Ship Shows Gap in International Law, N.Y. Times (Apr. 19, 2019), https://www.nytimes.com/2019/04/19/us/cruise-ship-crimes-laws.html.

[2] Id.; MSC Cruises and PortMaimi Celebrate Completion of New Terminal to Home Port Revolutionary MSC Seaside, MSC Cruises (Dec. 08, 2017), https://www.msccruisesusa.com/en-us/About-MSC/News/MSC-Cruises-PortMiami-Terminal-F.aspx.

[3] See generally Malkin, supra note 1.

[4] Id.

[5] Id.

[6] Id.

[7] Izzy Lyons & Gerard Couzens, Italian teenager accused of raping British girl on cruise in international waters walks free on legal technicality, Telegraph (Apr. 14, 2019), https://www.telegraph.co.uk/news/2019/04/14/italian-teenager-accused-raping-british-girl-cruise-international/.

[8] Id.

[9] Id.

[10] Maritime law and crimes in the high seas, Sealaw, https://www.sealaw.com/maritime-law-and-crimes-in-the-high-seas/ (last visited May 6, 2019).

[11] Id.

[12] Id.

[13] Lipcon, Marguiles, Alsina & Winkleman, P.A., Cruise Ship Law: What You Need to Know, Lipcon, Margulies, Alsina & Winkleman, P.A. (Apr. 18, 2018), https://www.lipcon.com/blog/cruise-ship-law-what-you-need-to-know/ [hereinafter Cruise Ship Law].

[14] See generally Malkin, supra note 1. This agency would be independent of the cruise company because cruises already have security personnel onboard but they are employed by the cruise itself. See generally Christopher Elliott, Mystery at Sea: Who Polices the Ships?, N.Y. Times (Feb. 26, 2006), https://www.nytimes.com/2006/02/26/travel/mystery-at-sea-who-polices-the-ships.html.

[15] See generally Malkin, supra note 1.; Eric Weiner, Cruise Ship Crimes in International Waters, NPR (Mar. 08, 2006), https://www.npr.org/templates/story/story.php?storyId=5251675.

[16] See generally How slavery and murder goes unpunished on the high seas, PBS Newshour (July 28, 2015), https://www.pbs.org/newshour/show/slavery-murder-goes-unpunished-high-seas (discussing the difficulty and lack of interest in enforcing laws against crimes that occur at sea).

[17] See Malkin, supra note 1.

[18] See id.

[19] See generally Cruise Ship Law, supra note 13.